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CiHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


C 


Technical  and  Bibliographic  Notes/Notas  tachniquas  at  bibliographiquas 


Tha  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  M  possible  de  se  procurer.  Les  details 
de  cat  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  euiger  une 
modification  dans  la  mithode  normale  de  filmage 
sont  indiquAs  ci-dessous. 


D 


Coloured  covers/ 
Couvertura  de  couleur 


□   Coloured  pages/ 
Pages  de  couleur 


D 


Covers  damaged/ 
Couverture  endommagde 


Q    Pages  damaged/ 
Pages  endommagdas 


D 


Covers  restored  and/or  laminated/ 
Couverture  restaurie  et/ou  pellicul^e 


□    Pages  restored  and/or  laminated/ 
Pages  restaurdes  et/ou  pelliculdes 


I      I    Cover  title  missing/ 


Le  titre  da  couverture  manque 


0    Coloured  maps/ 
Cartas  giographiquas  en  couleur 


D 


Pages  discoloured,  stained  or  foxed/ 
Pages  ddcolories,  tachatdes  ou  piqu6es 

Pages  detached/ 
Pages  ddtachies 


n 


Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


r~7|    Showthrough/ 


Transparence 


D 
D 
D 


D 


Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Relii  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  liure  serrie  peut  causer  de  I'ombre  ou  da  la 
distorsion  le  long  de  la  marge  intdrieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  oniitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajoutdas 
lors  d'une  restauration  apparaissant  dans  le  texte, 
mais,  lorsque  cela  Atait  possible,  ces  pages  n'ont 
pas  M  filmies. 


r~n    Quality  of  print  varies/ 


n 


Quality  in^gale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  supplementaire 


Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pagss  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc..  ont  6t6  filmdes  i  nouveau  de  facon  d 
obtenir  la  meilleure  image  possible. 


0 


Additional  comments:/ 
Commentaires  suppldmentaires: 


Wrinkled  pages  may  film  slightly  out  of  focus. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmi^  au  taux  da  reduction  indiquA  ci-dessous. 


10X 


14X 


18X 


22X 


26X 


30X 


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12X 


16X 


20X 


24X 


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ifier 
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ige 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  off: 

Library  of  the  Public 
Archives  of  Canada 

Vrte  images  appearing  here  are  the  best  quality 
possibie  considering  the  condition  and  legibility 
of  the  original  copy  and  in  Iteeping  with  the 
filming  contract  specifications. 


L'exemplaire  film*  f ut  reproduit  grfice  A  la 
g^nArositA  de: 

La  bibliothdque  des  Archives 
publiques  du  Canada 

«. 
Les  images  suivantes  ont  6t6  reproduites  avec  le 

plus  grand  soin.  compte  tenu  de  la  condition  et 

de  la  netteti  de  l'exemplaire  filmd.  et  en 

conformity  avec  les  conditions  du  contrat  de 

filmage. 


Original  copies  in  printed  paper  covers  are  limed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  bacit  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  Impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprim6e  sont  film6s  en  commen9ant 
par  le  premier  plat  et  en  terminant  soit  par  la 
derniirs  page  qui  comporte  une  empreinte 
d'Impression  ou  d'illustration.  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  ffiimds  en  commenpcnt  par  la 
premiere  page  qui  comporte  une  empreinte 
d'Impression  ou  d'illustration  et  en  terminant  par 
la  dernidre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ^-  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 


Un  des  symboles  suivants  apparaftra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  —►  signifie  "A  SUIVRE",  le 
symbols  ¥  signiffie  "FIN". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
film^s  d  des  taux  de  reduction  diff^rents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seui  cliche,  11  est  film6  d  partir 
de  I'angle  sup6rieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  ndcessaire.  Les  diagrammes  suivants 
illustrent  le  m6thode. 


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THE   RIGHT 


OF   THE 


UNITED  STATES  OF  AMERICA 


TO   THE 


NORTH-EASTERN  BOUNDARY 


CLAIMED   BY  THEM. 


PRINCIPALLY  EXTRACTED  FROM  THE  STATEMENTS  LAID 
BEFORE  THE  KING  OF  THE  NETHERLANDS, 


AND   REVI8B))    BY 

ALBERT    GALLATIN, 

WITH 

AN  APPENDIX  AND  EIGHT  MAPS. 


NEW  YORK: 
SAMUEL  ADAMS,  PRINTER. 


1  840 


TABLE  OF  CONTENTS. 


Preface, 
Introduction,    . 
Terms  of  the  Treaty,  . 
§  1.  American  Line, 
^  §  2.  British  Line, 
§  3.  Signification  of  the  expression,  « Highlands  which 
divide  Rivers,"    .... 

§  4.  The  term  "Atlantic  Ocean,"  how  far  contradistin 
guished  from  the  Bay  of  Fundy,  and  from  the  Gulf 
of  St.  Lawrence,  .... 

Intention  of  the  Parties,  .... 

§  6.  Negotiations  of  1782, 
§  6.  Former  Bouiidaries, 

§  7.  Topographical  Knowledge  of  the  Negotiators, 

§  8.  Recapitulation  «... 

Appendix,        ...... 

No.  I.  Acts  of  Jurisdiction  and  Opinions  entertained  subse 
quent  to  the  year  1783, 
No.  II.  Notes  on  an  essay  in  the  Westminster  Review,  for 
June,  1840,  signed  C.  B.,   \'^^^JiiUL'^.>■  . 
No.  III.  Observations  on  the  Report  of  Messrs.  Featherston 
haugh  and  Mudge 
No  IV.  Extracts  from  the  «  «<  « 

No.  V.  Extracts  from  the  Argument  of  the  British  Agent  un 
der  the  Ghent  Commission, 
Note  Explanatory  of  Maps,      .  .  .  .       . 

Maps,  ...... 

1.  Reduced  from  Map  A,  agreed  to  by  both  Powers,  1827 

2.  Part  of  Mitchell's  Map,  1775,  which  regulated  the  official 

proceedings  of  the  framers  of  the  treaty  of  1783. 


Page 

V 

1 
13 
13 
19 

31 


39 
61 
61 
72 
83 
96 
105 

107 

127 

136 
165 

174 
178 


IV 


CONTENTS. 


! 


3.  Reduced  from  the  Map  annexed  to  the  Report  of  Messrs. 

Featherstonhaugh  and  Mudge,  1840. 
Sketch  of  the  Highlands  claimed  by  Great  Britain  by 
Messrs.  Odell  and  Campbell,  1821.  . 

4.  Part  of  Cover  nor  Pownall's  Map,  London,  1776. 

«        Em.  Bow  n's  Map,  London,  1775. 
"        Map  of  Province  of  Quebec,  London,  1776. 
"        Map  of  Northern  British  Colonies  in  America, 
from  American  Military  Atlas,  London,  1776. 


I 

n 


PREFACE. 


The  British  Government  appointed  Commissioners,  in  the  year  1839, 
for  the  pnrpose  of  surveying,  1st,  the  line  heretofore  considered,  on  the 
part  of  Great  Britain,  as  the  north  eastern  boundary  of  the  United  States, 
namely,  that  which  extends  from  the  source  of  the  Chandiere  to  Mars 
Hill  ;  2dly,  the  line  from  the  source  of  the  Chandiere  to  the  point  at 
which  a  line  drawn  from  that  source  to  the  western  extremity  of  the 
Bay  of  Chaleurs,  intercepts  the  due  north  line  ;  3dly,  the  line  claimed 
by  the  Americans  from  the  source  of  the  Chandiere  to  the  point  at  which 
they  make  the  due  north  line   end. 

The  Commissioners  have  performed  the  duties  imposed  on  them  par- 
tially and  as  far  as  the  short  time  employed  in  the  exploration  permitted. 
And  the  Government  of  the  United  States  has  lately  appointed  Commis- 
sioners for  the  same  purpose,  the  result  of  whose  proceedings  can  hardly 
be  expected  before  the  year  1841. 

It  was  principally,  if  not  exclusively,  the  "  nature  and  configuration 
of  the  territory  in  dispute,"  that  the  British  Commissioners  were  direct- 
ed to  investigate.  It  is  well  known,  that  the  United  States  contend  that 
the  term  "  highlands  which  divide  rivers,"  used  in  the  treaty,  does  not 
imply  either  a  mountainous  character  or  an  absolute  but  only  a  relative 
elevation.  Bui  Great  Britain  has  an  undoubted  right  to  ascertain  all  the 
facts  concerning  the  topography  of  the  country,  the  knowledge  of  which 
is,  in  her  opinion,  important,  or  may  be  of  any  use  for  a  coriert  decision 
of  the  question.  And  had  the  Report  of  the  British  Commissioners 
been  confined  to  that  object,  nothing  more  would  at  most  have  been  ne- 
cessary, on  the  part  of  the  United  States,  than  the  exploration  which  the 
Government  has  lately  ordered.  But  the  Appendix  and  a  few  pages 
only  of  the  Report  of  the  Commissioners  relate  to  that  investigation. 
The  bulk  of  the  Report  is  devoted  to  a  discussion  apparently  of  the  me- 
rits of  the  case ;  and  its  conclusions  are  of  the  most  general  nature ; 
pronouncing  in  decisive  terms,  that  the  claims  of  Great  Britain  to  the 
whole  of  the  disputed  territory  are  founded  in  justice,  and  arc  in  plain 
accordance  with  Ihe  2d  Article  of  the  Treaty  of  17H3,  and  with  the  phy- 
sical geography  of  the  country  ;  and  that  the  line  which  is  claimed  on  th« 


▼i 


PREFACE. 


^ 


pari  of  the  United  Slalea,  (a)  as  the  line  of  Highlands  of  the  Treaty  of 
1783,  does  not  pass  nearer  than  from  40  to  50  miles  of  the  north-west, 
ernmostheadof  Connecticut  River,  and  therefore  has  no  pretension  to  be 
put  forward  as  the  line  intended  by  the  Treaty  of  1793. 

It  might  be  inferred,  from  the  general  tone  of  the  Report,  and  from 
the  manner  in  which  they  are  announced,  that  those  conclusions,  which 
declare,  that  the  British  line  dues  in  every  respect,  and  that  the  Ameri- 
can line  does  not  fulfil  the  conditions  of  the  Treaty,  were  deduced  from 
the  argumentative  part  of  the  Report.  The  inference  would  be  altogether 
erroneous. 

The  fundamental  objection  against  the  British  line  is  that,  for  one 
hundred  and  twenty  miles  or  about  three  fifths  of  its  whole  length,  it  di- 
vides or  can  divide  no  other  rivers  hut  the  waters  of  the  Penobscot  from 
those  of  the  St.  John,  neither  of  which  empties  itself  into  the  River 
St.  Lawrence  ;  whilst  the  treaty  expressly  describes  the  boundary  as  be- 
ing from  its  beginning  on  the  due  north  line,  to  the  source  of  the  Con- 
necticut, along  the  highlands  which  divide  the  rivers  that  empty  them- 
selves into  the  river  St.  Lawrence  from  those  which  fall  into  the  Atlantic 
Ocean.  There  is  not  in  the  Report  even  an  allusion  to  that  main  ques- 
tion on  which  the  two  Governments  are  at  issue. 

The  only  reason  heretofore  assigned  why,  if  the  boundary  claim- 
ed by  Great  Britain  was  that  which  the  negotiators  of  the  treaty 
contemplated,  they  described  it  in  terms  contradictory  of  their  pre- 
sumed intention,  is  their  supposed  ignorance  of  the  topography  of 
the  country.  The  United  States  contend  thai  *he  knowledge  which  the 
negotiators  had  of  that  topography  was  amply  sufficient  to  enable  them 
to  describe  without  difRculty,  and  with  the  utmost  precision,  the  boundary 
now  claimed  by  Great  Btitain,  had  such  been  their  intention ;  and  that 
the  boundary  actually  described  in  the  treaty  corresponds  precisely  with 
that  claimed  by  America.  This  is  another  of  the  great  questions  at  is- 
sue ;  and  in  that  respect,  as  applied  to  the  British  line,  the  United 
States  cannot  complain  much  of  the  Report.  For  although  the  Com- 
missioners say  in  conclusion,  that  Ihey  have  found  a  line  of  highlands 
agreeing  with  the  treaty,  yet  they  strenuously  assert  in  the  body  of  the 
Report,  that  those  very  highlands  were  well  known,  not  only  at  the  date 
of  the  treaty,  but  more  than  twenty  years  before :  which  renders  the 
language  of  the  treaty  still  more  inexplicable.  However  that  may  be, 
the  Report  dues  not  disprove  the  assertion,  on  the  part  of  the  United 


(o)  It  is  well  known,  that  the  line,  from  the  source  of  the  Connecticut  to  the 
aorth-western  sources  of  the  Penobscot,  is  common  to  the  United  States  and  to  Great 
Britain,  being  on  highlands  acknowledged  by  both  parties.  The  line  here  alluded 
to,  which  passes  50  miles  of  the  source  of  the  Connecticut,  and  is  called,  the  line 
claimed  on  the  part  of  the  United  States,  is  not  and  has  never  been  claimed  by  them. 


ii- 


PREFACE. 


VU 


States,  that  the  negotiators  might  have  described  with  precision,  if  so 
intended,  the  boundary  claimed  by  Great  Britain  ;  nor  is  there  any  sat- 
isfactory  reason  assigned,  why  it  was  not  done. 

On  the  part  of  Great  Britain,  two  principal  objections  are  raised  against 
the  American  line.  The  first  is,  that  the  Rivers  Ristigouche  and  St. 
John  are  not,  in  that  clause  of  the  Treaty  which  relates  to  the  division  of 
Rivers,  to  be  taken  as  Rivers  that  fall  into  the  Atlantic  Ocean.  That  im- 
portant question  is  not  alluded  to  in  the  Report. 

The  other  objection  is,  that  the  "  highlands  which  divide  Rivers"  im- 
plies a  considerable  and  conspicuous  elevation  and  a  mountainous  char« 
acter ;  and  that  the  British  line  unites  and  that  the  American  line  wants 
those  properties.  The  question  of  fact,  which  was  the  proper  object  of 
the  investigation  committed  to  the  care  of  the  Commissioners,  is  the 
subject  of  the  Appendix  to  the  Report,  and  is  treated  in  the  Report  it- 
self. But  it  is  silent  on  the  previous  question,  viz  :  whether  the  term 
above  mentioned  does,  as  is  contended  for  on  the  part  of  Great  Britain, 
or  does  not,  as  the  United  States  maintain,  imply  such  elevation  and 
mountainous  character,  {b) 

It  is  manifest,  from  the  silence  preserved  in  the  Report,  on  all  the 
true  questions  at  issue  between  the  two  Governments,  and  on  which  de- 
pends the  final  decision,  that  the  Commissioners  considered  those  ques- 
tions as  having  been  definitively  settled  in  favour  of  Great  Britain  by 
her  former  agents ;  and  that  the  general  conclusions  annexed  to  the 
Report  are  deduced  from  the  arguments  of  those  agents,  and  not  from 
those  contained  in  the  Report.  Independent  of  the  Barometric  observa- 
tions and  other  facts  actually  ascertained  by  the  Commissioners  in  the 
course  of  their  exploration,  the  Report,  diverted  of  its  incautious  and  re- 
prehensive  passages,  and  viewed  under  its  most  favourable  aspect,  is  at 
most  but  a  subsidiary  document.  In  the  argumentative  part  of  it,  it 
treats  only  of  subordinate  topics,  many  altogether  irrelevant,  and  none 
that  could,  even  if  proved,  affect  the  ultimate  decision  of  the  difference 
between  the  two  Countries,  (c)  Nor  has  the  Report  even  the  merit  of 
originality  with  respect  to  those  subjects  which  it  does  discuss,  as  wilt 
clearly  appear  by  reference  to  the  British  statements  laid  before  the  King 
of  the  Netherlands,  {d) 

Those  statements  of  the  case,  on  the  part  of  both  Great  Britain  and 
the  United  States,  two  on  each  side,  though  printed,  have  never  been 


{b)  Those  four  main  questions  are  respectively  discussed  in  the  2d,  7lh,4th,  and  3d 
Sections  of  the  following  essay. 

(c)  See  Nos.  Ill  and  IV  of  the  Appendix  lo  this  essay. 

(d)  The  reader  cannot  refer  to  those  statements;  but  the  substance  will  be  found 
in  the  5th  and  6th  Sections,  and  in  No.  I  of  the  Appendix  to  this  essay  ;  which  con- 
tain hardly  any  thing  more  than  had  been  written  and  laid  before  the  King  of  the  Ne- 
therlands more  than  ten  yearn  ago. 


!  I 


Tiii 


PREFACE. 


publi.»hed.  It  would  seein  aa  if  both  Governments,  subsequent  to  the 
award,  had,  from  mutual  forbearance,  thought  it  wiser  not  to  commit 
themselves  further  than  had  been  done,  not  to  ogitate  the  public  mind 
by  a  publication  of  those  documents,  and  rather  to  apply  their  endeavours 
to  the  preservation  of  peace,  and  to  devise  some  new  mode  of  amicably 
settling  the  difference.  However  well  disposed  in  both  respects  and 
successful  iu  attaining  the  first  object,  they  had  made  but  little  progress 
towards  the  other.  The  case  is  now  altered.  A  document  has  been 
brought  forth,  laid  before  Parliament  and  published,  which,  notwith- 
staadiug  its  high  pretensions,  gives  but  a  very  imperfect  view  of  the 
subject,  treats  only  of  subordinate  points,  does  not  discuss  any  of  the 
great  questious  at  issue,  and  yet  which  from  the  boldness  of  its  conclu* 
sions  and  the  sanction  under  which  it  has  oppeared,  was  calculated  to 
produce  and  has  made,  in  England  at  least,  an  impression  unfavorable 
to  the  riglits  and  to  the  acts  of  the  United  States.  It  appears  just  and 
necessary  that  something  should  be  done  that  may  counteract  that  effect, 
and  show  at  least,  that  the  grounds  on  which  they  rest  their  claim  are 
neither  light  and  frivolous,  nor  certaiv.ly  to  be  shaken  by  either  the  dis- 
coveries or  the  arguments  of  the  Keport. 

Having  been,  jointly  '.vith  Mr.  Preble,  one  of  the  agents  who  prepar- 
ed the  Statements  laid  before  the  King  of  the  Netherlands,  the  subject 
was  familiar  to  me.  I  have  had  little  mure  to  do,  than  to  blend  the  two 
Statements  into  one,  to  alter  accordingly  the  arrangement,  to  abridge  as 
much  as  was  consistent  with  an  examination  of  all  the  arguments  ad- 
duced by  the  other  Party,  and  to  revise  the  whole,  with  such  additions 
only,  as  new  suggestions  however  singular  and  some  unfounded  imputa- 
tions seemed  to  require.  I  have  tried  to  indicate  at  least  all  the  argu- 
ments and  objections  of  the  British  agents  ;  and  if  I  have  omitted  any, 
the  omission  is  quite  involuntary :  for  one  of  my  objects  was  to  make 
the  people  of  the  United  States  acquainted  with  the  substance  of  all  that 
had  been  suggested  in  opposition  to  the  American  claim.  Yet,  this 
paper  is  what  it  purports  to  be,  an  argument  in  behalf  of  the  United 
States  :  and  in  order  to  have  a  fair  and  complete  view  of  the  subject, 
either  the  former  British  Statements  should  be  published,  or  some  other 
document  be  substituted,  which  should  discuss  the  true  questions  at  issue, 
and  exhibit  the  British  claim  with  perspicuity  and  in  the  most  favorable 
view  of  which  it  is  susceptible. 

I  am  sensible  that  nothing  coming  from  me  will  alter  the  opinions 
adverse  to  the  American  claim,  which  may  be  entertained  in  England. 
The  utmost  that  can  be  expected  is  that  those  into  whose  hands  this  es- 
say m.ny  fall,  may  be  induced  to  investigate  the  subject  and  to  judge  for 
themselves.  But  if  the  claim  of  the  United  States  is,  according  to  our 
convictiou.',  founded  in  strict  justice,  it  is  to  the  British  Cabiuet  ilselfy 


»n^ 
toriil 
the  I 
by 
iusi 


PREFACE. 


IX 


luent  to  the 
to  commit 
)ubiic  mind 
endeavours 
of  amicably 
aspects  and 
le  progress 
t  has  been 
t,  notwith- 
I'iew  of  the 
any  of  the 
its  conclu- 
Inulutcd  to 
in  favorable 
s  just  and 
that  eflfect, 
claim  are 
Br  the  dis* 

ho  prepar- 
he  subject 
id  the  two 
ibridge  as 
imcnts  ad- 
additions 
id  imputa- 
the  argu- 
itted  any, 
to  make 
>f  all  that 
Yet,  this 
United 
subject, 
tne  other 
3  at  issue, 
favorable 

opinions 
England. 

this  es- 
udge  for 

to  our 
et  itself^ 


and  without  any  intermediary,  that  the  appeal  must  be  made.  In  all  in- 
ternational differences,  the  people  almost  always  take  it  for  granted  that 
the  foreign  Government  is  in  the  wrong,  and  follow  the  impulse  given 
by  their  own.  The  feeling  is  quite  natural,  generally  proper,  and  ia  this 
instance,  common  to  both  countries. 

The  fact,  that  the  Secretary  of  State  for  foreign  affairs  did  lay  before 
the  Parliament  of  Great  Britain  the  report  of  the  late  commissioners, 
affords  strong  evidence,  that  that  distinguished  statesman,  amidst  his 
more  important  and  overwhelming  avocations,  had  not  found  time 
thoroughly  to  investigate  the  merits  of  the  case  and  to  judge  for  himself. 
This  is  not  at  all  surprising :  I  could  quoto  the  instance  of  an  intelli- 
gent and  enlightened  Secretary  of  State  of  the  United  States,  much  less 
burtheued  with  ofHcial  duties  than  a  British  Minister,  who,  on  this  very 
question,  did,  subsequent  to  the  award,  propose  to  substitute,  for  the  due 
north  line,  another  which  would  have  given  to  Great  Britain  the  greater 
part,  if  not  the  whole  of  the  disputed  territory.  Why  tho  proposal  was 
made,  and  why  it  was  not  at  once  accepted,  cannot  be  otherwise  ac- 
counted for,  so  far  at  least  as  regards  the  offer,  than  by  a  complete  igno- 
rance of  the  whole  subject. 

In  the  various  negotiations  with  Great  Britain  in  which  I  have  been 
employed,  there  v/as  always  an  earnest  desire  to  remove  subjects  of  con- 
tention, and  to  promote  friendly  relations ;  on  almost  all  questions  a  con- 
ciliatory dispositi9n  ;  nothing  at  any  time,  that  could  shake  my  confi- 
dence in  the  siacerity  and  good  faith  of  that  government-  And  I  do 
believe  that  it  would  do  justice,  if  it  was  once  satistied  that  justice  was 
due. 

It  is  earnestly  to  be  wished,  that  some  one  of  the  members  of  the  en- 
lightened British  Cabinet  would  take  the  trouble,  to  examine  thoroughly 
and  in  all  its  tedious  details  that  vexed  question,  not  omitting  a  search 
in  the  archives  of  the  state  office,  of  the  instructions  and  actual  inten- 
tions of  the  British  negotiators  in  1782  and  1783.  It  seems  to  mo  al* 
most  impossible  that,  in  a  case  in  which,  as  I  believe,  there  is  no  British 
jury  or  British  chancellor  who  would  not  decide  in  favor  of  America,  the 
result  of  an  attentive  ministerial  inquiry  afler  truth  should  not  be  the 
same. 

Yet  we  may  mistake  our  convictions  for  a  demonstration  of  truth  : 
to  such  error  both  parties  are  equally  liable ;  and  should  the  govern- 
ment of  Great  Britain  still  remain  unsatisfied,  the  investigation  might  at 
least  lead  to  a  nearer  approximation  towards  a  settlement,  and  could 
under  no  circumstance  place  the  two  countries  in  a  worse  situation  than 
they  now  are. 

But  under  any  circumstances  whatever,  tho  question  must  be  settled. 
It  would  be  the  herg!'.  of  madness  and  of  wickedness  to  come  to  a  rup- 


PREFACE. 


ture,  and  for  such  an  object.  Both  governments  are  animated  by  a  sin< 
cere  and  earnest  desire  to  preserve  peace.  It  is  not  believed  that  the 
English  nation  wishes  a  war  with  the  United  States.  It  may  be  confi- 
dently asseiied  that,  with  an  entire  conviction  of  their  right  to  the  terri- 
tory in  question,  there  is  not  a  more  universal  feeling  amongst  the  peo- 
ple of  America,  every  where  and  without  distinction  of  political  parties, 
than  that  of  the  preservation  of  peace,  above  all  of  peace  with  Great 
Britain.  It  is  the  duty  of  the  two  governments  speedily  to  devise  and 
to  adopt  the  means  necessary  for  effecting  the  object ;  and  I  believe  that 
means  may  be  found. 

The  government  of  the  United  States  has  not  been,  consulted  on  the 
subject  of  this  publication.  And  it  is  hoped  that  this  full  exposition  of 
the  claim  of  the  United  States  was  not  only  proper  at  this  time,  but  may 
not  be  withou.  its  use  in  promoting  a  satisfactory  settlement  of  the  ques- 
tion. 


]  by  a  sin- 
d  that  the 
r  be  confi- 
0  the  terri- 
st  the  peo- 
:al  parties, 
with  Great 
devise  and 
lelieve  that 


INTRODUCTION. 


ted  on  the 
losition  of 
le,  but  may 
)f  the  ques- 


Thb  frequent  references  made  in  the  discussion  of  the  north-eastern 
boundary  of  the  United  States,  to  various  treaties  and  other  public  docu- 
ments, render  it  necessary  to  give  in  the  first  place  extracts  of  those 
documents,  together  with  some  explanatory  notes. 

On  the  8th  of  November,  16U3,  Uenry  IV.  King  of  France,  appoint- 
ed Pierre  de  Monts,  his  lieutenant-general,  in  the  country,  territories, 
coast  and  limits  of  Cadie,  (la  Cadie,)  since  called  Acadie  or  Acadia, 
commencing  from  the  fortieth  degree  to  the  forty-sixth. 

By  a  charter  of  the  10th  of  September,  1621,  James  I.  granted  to 
Sir  William  Alexander  a  certain  territory,  under  the  name  of  "  Nova 
Scotia,'*  with  the  following  boundaries  :  (a) 

«  Beginning  a^  Cape  Sable,  in  forty-three  degrees  north  latitude,  or 
thereabout,  extending  thence  westwardly  along  the  sea-shore,  to  the 
road  commonly  called  St.  Mary's  Bay ;  thence  towards  the  north  by  a 
direct  line  crossing  the  entrance  or  mouth  of  that  great  ship  road,  which 
runs  into  the  eastern  tract  of  laud  between  the  territories  of  the  Souri- 
quois  and  of  the  Etchemins,  (Bay  of  Fuudy,)  to  the  river  commonly 
called  St.  Croix,  and  to  the  moat  remote  spring  or  source,  which,  from 
the  western  part  thereof,  first  mingles  itself  with  the  river  aforesaid  ;  from 
thence,  by  an  imaginary  direct  line,  which  may  be  conceived  to  stretch 
through  ^he  land,  or  to  run  towards  the  north,  to  the  nearest  road,  river 
or  spring  emptying  itself  into  the  great  river  de  Canada;  (River  St. 
Lawrence ;)  and  from  thence  proceeding  eastwardly  along  the  sea- 
shores of  the  said  river  de  Canada,  to  the  river,  road,  port,  or  shore, 
commonly  known  and  called  by  the  name  of  Gachepe  or  Gaspe  ;  and 
thence  south-eastwardly  to  the  islands  called  Uaccaleos  or  Cape  Breton, 
leaving  these  islands  on  the  right  and  the  Gulf  of  the  said  river  de  Cana- 
da or  of  the  gret^t  ship  road  and  the  lands  of  Newfoundland,  with  the 
islands  to  the  same  pertaining,  on  the  left ;  and  thence  to  the  head  land 
or  promontory  of  Cape  Breton  aforesaid,  lying  near  the  latitude  of  forty- 
five  degrees,  or  thereabout ;  and  from  the  said  promontory  of  Cape  Bre- 
ton, towards  the  south  and  west,  to  Cape  S)able  aforesaid,  where  the  per- 
ambulation   begin, all  which  lands    aforesaid, 

(a)  This  translation,  from  the  original  Latin,  is  the  same  which  was  inserted  in 
the  first  ^  merican  staieinent  laid  before  the  King  of  the  Netherlands. 

1 


9 


INTRODUCTION, 


Ijl 


shall  at  all  times  hereafter  be  called  and  known  by  the  name  of  Nova 
Scotia,  or  New  Scotland,  in  America."  (6) 

[The  western  boundary  thereby  assigned  to  Nova  Scotia  difTers  from 
the  eastern  boundary  of  the  United  States,  as  described  by  the  treaty  of 
peace  of  1783,  in  the  following  particulars. 

l8t.  The  western  source  of  the  River  St.  Croix  was  intended  by  Sir 
William  Alexander's  charter;  but  by  the  treaty  of  1783,  the  said  river, 
from  its  month  to  its  source,  without  particularly  designating  which 
source,  is  made  the  boundary :  and  this  has  been  decided  to  be  the  river 
from  its  mouth  to  the  source  of  its  north  branch. 

2d.  The  line  from  the  source  of  the  River  St.  Croix,  is,  according  to 
the  churter,  to  run  toieards  the  north  ;  (versus  septentrionem  ;)  by  the 
treaty,  it  must  run  due  north,  or  directly  north. 

3d.  The  said  line,  by  the  charter,  extends  to  the  River  St.  Lawrence, 
and,  by  the  treaty,  to  the  highlands  dividing  the  rivers,  itc] 

On  the  3d  of  April,  1639,  Charles  I.  granted  to  Ferdinand  Gorges,  by 
the  name  of  Province  or  County  of  Maine,  a  territory  bounded  on  the 
west  by  Pascataway  Harbor  and  the  River  Newichewanocke,  (Piscata- 
qua  River,)  to  the  furthest  head  thereof,  and  thence  one  hundred  and 
twenty  miles  north-westwards,  extending  from  Pascataway  Harbor,  north- 
eastwards, along  the  sea  coast  to  Sagaduhock,  (the  Kiver  Kennebec  be- 
low the  confluence  of  the  River  Androscoggin,)  and  up  the  River  thereof 
to  Kynybecky  River,  and,  through  the  same,  to  the  head  thereof,  and 
into  the  land  north  westwards  one  hundred  and  twenty  miles  from  the 
mouth  of  Sagadahock,  &c. 

This  grant  was  purchased  in  the  year  1674,  by  the  colony  of  Massa- 
chusetts ;  and,  although  the  name  of  Maine  has  since  been  extended  to 
the  country,  eastwardly,  as  far  as  the  Boundaries  of  Nova  Scotia,  the 
ancient  Province  of  Maine,  according  to  the  aforesaid  original  grant, 
was  bounded  on  the  east  by  the  River  Sagadahock  or  Kennebec. 

On  the  12th  of  March,  1663,  Charles  H.  granted  to  his  brother  James, 
Duke  of  York,  "  all  that  part  of  the  main  land  of  New  England,  begin- 
ning at  a  certain  place,  called  or  known  by  the  name  of  St.  Croix,  adjoin- 
ing to  New  Scotland  in  America ;  and  from  thence  extending  along 
the  sea  coast,  unto  a  certain  place  called  Pemaquin  or  Pemaquid;,  and 
60  up  the  river  thereof  to  the  furthest  head  of  the  same  as  it  tendeth 
northwards,  and  extending  from  thence  to  the  river  of  Kennebec,  and 
80  up,  by  the  shortest  course,  to  the  river  of  Canada,  northwards."  This 
last  described  territory,  to  which  the  name  of  Maine  has  since  extend- 
ed, is  that  which,  in  ancient  maps,  is  called  Sagadahock  ;  and  it  will  be 
perceived  that  it  extended  northward  to  the  River  St.  Lawrence. 

Great  Britain  having,  by  the  tenth  article  of  the  treaty  of  Breda,  con- 
cluded on  the  3lst  of  July,  1667,  agreed  to  restore  to  France  the  country 
called  Acadia,  situated  in  North  America,  which  had  formerly  been  in  the 
most  Christian  King's  possession,  the  Duke  of  York  obtained  from 
Charles  H.  a  subsequent  confirmation  of  his  grant,  bearing  date  the  29th 
of  June,  1674.  The  territory  was  afterwards  governed  underthe  authori- 
ty of  the  Duke  of  York,  and,  at  his  accession  to  the  throne,  merged  in 
the  crown. 

(A)  This  grant  was  confirmed  by  a  subsequent  Charter  of  Charles  I.  dated  12th  of 
July,  16'25. 


] 


INTRODUCTION. 


3 


of  Nova 

fTers  from 
)  treaty  of 

led  by  Sir 
laid  river, 
ng  vvhich 
e  the  river 

lording  to 
;)  by  the 

iawrence, 

rorges,  by 
led  CD  the 
(Piscata- 
idred  and 
lor.  north- 
nebec  be- 
er thereof 
reof,  and 
from  the 

f  Massa- 
teiided  to 
cotia,  the 
nal  graut, 
c. 

r  James, 
d,  begin- 
(,  adjoin- 
ng  along 
r|uid,  and 
tendeth 
bee,  and 
»  This 
exteud- 
it  will  be 

jda,  con- 
)  country 
en  in  the 
ed  from 
the  29th 
i  authori- 
lerged  in 


edmho/" 


The  three  above  described  territories,  Nova  Scotia,  the  ancient  Pro- 
vince of  Maine,  and  Sagadahock,  or  the  Duke  of  York's  Grant,  were, 
by  the  last  Charter  of  Massachusetts  granted  on  the  7th  of  October,  1691, 
by  William  and  Mary,  annexed  to  the  then  Colony  of  Massachusetts' 
Bay,  as  will  appear  by  the  following  extracts  of  the  said  Charter. 

"  We  ....  will  and  ordain  that  the  territories  and  colonies 
commonly  called  or  known  by  the  names  of  the  Colony  of  the  Massachu- 
setts* Bay  and  Colony  of  New  Plymouth,  (these  forming  the  now  State 
of  Massachusetts,  or  Massachusetts  proper,)  the  Province  of  Main,  tl)e 
Territory  called  Accadia  or  Nova  Scotia,  and  all  that  tract  of  land  lying 
between  the  said  Territories  of  Nova  Scotia  and  the  said  Province  of 

Main,  be  united,  erected,  and  incorporated hv 

the  name  of  our  Province  of  Massachusetts'  Bay,  in  New  England ; 
.  .  .  .  and  do  give  and  grant  unto  our  said  subjects  the  inha- 
bitants of  our  said  Province  or  Territory  of  the  Massachusetts'  Bay,  and 
their  successors,  all  *hat  part  of  New  England,  in  America,  .... 
and  all  the  lands  and  hereditaments  whatsoever,  lying  within,  (here  the 
limits  of  IVfassachusetts  proper,  and  of  the  ancient  Province  of  Maine  are 
described,)  and  also  the  lands  and  hereditaments  lying  and  being  in  the 
Country  or  Territory  commonly  called  Accadia,  or  Nova  Scotia  ;  and 
all  those  lands  and  hereditaments  lying  and  extending  between  the  said 
Country  or  Territory  of  Nova  Scotia,  and  the  said  River  of  Sagadahock, 
(the  Eastern    Boundary  of   ancient  Maine,)  or  any    part  thereof; 

Provided  also  that  it  shall  and  may  be  lawful  for  the 

said  Governor  and  General  Assembly,  (of  the  Province  erected  by  this 
Charter,)  to  make  or  pass  any  grant  of  lauds  lying  within  the  bounds  of 
the  colonies  formerly  called  the  Colonies  of  the  Massachusetts'  Bay,  and 
New  Plymo'ith  and  Province  of  Maine,  in  such  manner  as  heretofore 
they  might  have  done  by  virtue  of  any  former  Charter  or  letters  patents ; 
which  grants  of  lands  within  the  bounds  aforesaid,  we  do  hereby  will  and 
ordain  to  be  and  continue  forever  of  full  force  and  effect  without  our 
further  approbation  or  consent ;  and  so  as  nevertheless,  and  it  is  our 
royal  will  and  pleasure  that  no  grant  or  grants  of  any  lands  lying  or  ex. 
tending  from  the  River  of  Sagadahock  to  the  Gulf  of  St.  Lawrence  and 
Canada  Rivers,  and  to  the  main  sea  northward  and  eastward,  to  be  made 
or  passed  by  the  Governor  and  General  Assembly  of  our  said  Province, 
be  of  any  force,  validity,  or  effect,  until  we,  our  heirs  and  successors 
shall  have  signified  our  or  their  approbation  of  the  same." 

[It  must  be  observed  that  according  to  that  Charter,  both  Nova  Sco- 
tia and  the  territory  between  it  and  the  River  Kennebec  (or  Sagada- 
hock) extended  on  the  north  as  far  as  the  River  St.  Lawrence  :  and  that 
grants  of  land  made  in  either  by  the  Governor  and  General  Assembly 
of  the  province,  required  the  approbation  of  the  King;  so  that,  in  order 
to  be  valid,  such  grants  required  both  his  consent  and  that  of  the  Provin- 
cial Government. 

No  other  reason  can  be  assigned  for  having  thus  annexed  to  the 
Province  of  Massachusetts,  Nova  Scotia,  or  Acadia,  which  had  been 
restored  to  France  by  the  treaty  of  Breda,  than  the  state  of  war  existing 
between  the  two  countries,  in  the  year  1691,  when  that  Charter  wa, 
granted.  Great  Britain,  however,  agreed  by  the  treaty  of  Ryswick  of 
20th  September,  1697,  to  restore  to  France  "all  countries,  islands, fortss 
and  coloniei,  wheresoever  situated,  which  the  French  did  possess  before 


4  INTRODUCTIOir. 

fhe  declaration  of  war."  Acadia,  or  Nova  Scotia,  being  clearly  embra- 
ced by  those  expressions,  and  being  thus  severed  fiom  the  British  Do- 
minions, the  clause  of  the  Massachusetts  Charter,  which  annexed  that 
territory  to  Massachusetts,  was  virtually  repealed,  and  became  a  nullity. 
The  understanding  of  the  British  Government  of  the  extent  of  that  res. 
titution,  will  be  found  in  the  following  sentence  of  a  letter  from  the 
Lords  of  the  Board  of  Trade,  dated  3lth  October,  17U0,  to  the  Earl  of 
Bellamont,  the  Governor  of  Massachusetts,  viz :  «  as  to  the  Bounda- 
ries, we  have  always  insisted,  and  shall  insist  upon  the -English  right, 
as  far  as  the  River  St.  Croix."] 

France  having,  by  the  1 2th  article  of  the  treaty  of  Utrecht,  of  1713, 
ceded  to  Great  Britain  «  All  Nova  Scotia  or  Acadie,  ^vith  its  ancient 
Boundaries,"  that  Province  was  not  reannexed  to  Massachusetts'  Bay, 
from  which  it  had  been  severed  by  virtue  of  the  treaty  of  Ryswick  :  but 
it  was  erected  by  the  British  Government  into  a  separate  Province. 
Richard  Phillips  was  its  first  Governor,  and  he  is,  in  his  commission, 
dated  the  11th  of  September,  1719,  designated  as  '<  Captain  General  and 
Governor  in  Chief  in  and  over  our  Province  of  Nova  Scotia  or  Acadie 
in  America,"  without  any  description  of  the  limits  of  the  Province. 
The  same  style,  and  without  any  designation  of  its  boundaries,  is  pre- 
served in  the  subsequent  commissions  of  the  Governors  of  Nova  Scotia, 
till  the  year  1763. 

The  territory  lying  between  Nova  Scotia  and  the  river  Sagadahock 
(or  Kennebeck)  remained  a  part  of  Massachusetts'  Bay  according  to  its 
charter.  A  question  arose,  however,  some  years  afterwards,  in  that  res- 
pect, which  having  been  referred  to  the  law  officers  of  the  Crown,  (the 
attorney  and  solicitor  general,)  they  gave  it  as  their  opinion  :  (dated 
August  11th,  1731  :)  That  all  the  tract  of  land  lying  between  the  rivers 
of  Kennebec  and  St.  Croix,  is  granted  by  their  charter  to  the  inhabi- 
tants of  the  said  Province ;  that  the  rights  of  Government  granted  to  the 
said  Province  extend  over  this  tract  of  land : — That  it  does  not  appear 
that  the  inhabitants  of  the  said  Province  have  been  guilty  of  any  such 
neglect  or  refusal  to  defend  this  part  of  the  country,  as  can  create  a  for- 
feiture of  that  subordinate  right,  of  Government  of  the  same,  or  of  such 
property  in  the  soil,  as  was  granted  to  them  by  the  said  charter.  That 
if  the  Province  had  incurred  any  forfeiture  in  the  present  cose,  no  ad. 
vantage  could  be  taken  thereof  but  by  a  legal  proceeding,  by  scire  facias 
to  repeal  their  charter,  or  by  inquisition  finding  such  forfeiture :  That 
the  said  tract  of  country,  not  having  been  yielded  by  the  crown  of  Eng. 
land  to  France  by  any  treaty,  the  conquest  thereof  by  the  French  created 

S according  to  the  law  of  Nations)  only  a  suspension  of  the  property  of 
le  former  owners,  and  not  an  extinguishment  of  it:  and  that  upon  the 
reconquest  of  it,  by  General  Nicholson,  all  the  ancient  rights,  boih  of 
the  Province  aud  of  private  persons,  subjects  of  the  crown  of  Great 
Britain,  did  revive  and  were  restored  jure  posiliminii.  Whence  they 
conclude  that  the  said  charter  still  remains  in  force,  aud  that  the  crown 
hath  not  power  to  appoint  a  particular  Governor  over  this  part  of  the 
Province,  or  to  assign  lands  to  persons  desirous  to  settle  there  ;  nor 
can  the  Province  grant  these  lands  to  private  proprietors  without  the 
approbation  of  the  crown,  according  to  the  charter. 

[In  Mitchell's  map,  published  in  the  year  1755,  the  river  St.  Croix, 
and  a  due  north  line  from  its  source  to  the  river  St.  Lawrence,  are,  ao 


INTRODUCTIOir.  O 

cordingly,  made  the  boundary  between  Nova  Scotia  and  New  England ; 
embracing,  under  this  last  designation,  the  eastern  part  of  Massachusetts, 
by  the  name  of  Sagadahock.  Both  Nova  Scotia  and  New  England  are, 
in  that  map,  published  with  the  approbation  of  the  Board  of  Trade, 
bounded  to  the  north  by  the  river  St.  Lawrence.  And  that  river  con- 
tinued, accordingly,  to  be  the  northern  boundary  of  both,  till  the  7th  of 
October,  1763 ;  when,  Canada,  and  all  the  possessions  claimed  by 
France  in  that  quarter,  having,  by  virtue  of  the  treaty  of  peace  of  Febru- 
ary, 1763,  been  deflnitively  ceded  by  her  to  Great  Britain,  His  Britan- 
nic Majesty  issued  a  proclamation  establishing  new  Governments,  and, 
amongst  others,  that  of  Quebec] 

The  boundaries  of  that  Government  were,  by  the  said  proclamation, 
fixed  as  follows.  "  Bounded  on  the  Labrador  Coast  by  the  river  (c)  St. 
John  ;  and  from  thence,  by  a  line  drawn  from  the  head  of  that  river, 
through  the  Lake  St.  John,  to  the  south  end  of  the  Lake  Nipiising, 
from  whence  the  said  line,  crossing  the  river  St.  Lawrence  and  the  Lake 
Champlain,  in  forty-five  degrees  of  north  latitude,  passes  along  the 
Highlands  which  divide  the  rivers  that  empty  themselves  into  the  said 
river  St.  Lawrence  from  those  which  fall  into  the  sea,  and  also  along 
the  north  coast  of  the  Bay  des  Chaleurs  and  the  coast  of  the  Gulf  of  St. 
Lawrence,  to  Cape  Rosiers ;  and  from  thence,  crossing  the  mouth  of 
the  river  St  Lawrence,  by  the  west  end  of  the  Island  of  Anticosti.  termi- 
nates at  the  aforesaid  river  St.  John." 

[The  Highlands  therein  designated,  being  assigned  as  the  southern 
boundary  of  the  Province  of  Quebec,  became  the  northern  boundary  of 
Nova  Scotia  ;  the  north  west  corner  of  which,  instead  of  being,  as  here- 
tofore, on  the  bank  of  the  river  St.  Lawrence,  was  thereby  placed  on  the 
said  Highlands.] 

The  boundaries  of  the  Province  of  Quebec  were  enlarged  in  another 
quarter  by  the  act  of  Parliament  of  14th  Geo.  HI.  Chap.  S3.  (1774) 
commonly  called  the  Quebec  act.  But  those  adjacent  to  Nova  Scotia 
and  Massachusetts  were,  by  that  act,  defined  in  words  nearly  similar  to 
those  used  in  the  proclamation  of  1763,  viz: 

'<  That  all  the  Territories,  Islands,  and  Countries  in  North  America, 
belonging  to  the  crown  of  Great  Britain,  bounded,  on  the  south,  by  a 
line  from  the  Bay  of  Chaleurs  along  the  Highlands  which  divide  the 
rivers  that  empty  themselves  into  the  river  St.  Lawrence  from  those 
which  fall  into  the  sea,  to  a  point  in  forty-five  degrees  of  northern  lati- 
tude, on  the  eastern  bank  of  the  river  Connecticut,  keeping  the  same 
latitude  directly  west  through  the  Lake  Champlain,  until,  in  the  same 
latitude,  it  meets  the  river  St.  Lawrence,  from  thence,  &c 

.  .  oe,  and  they  are  hereby,  during  his  Majesty's  pleasure,  annexed 
to,  and  made  part  and  parcel  of  the  Province  of  Quebec,  as  created  and 
established  by  (he  said  Royal  Proclamation,  of  the  7th  of  October,  1763." 

*'  Provided  alway:^,  that  nothing  herein  contained,  relative  to  the 
boundary  of  the  Province  of  Quebec,  shall,  in  any  wise,  aiftict  the  boun- 
daries of  any  other  Colony." 

Notwithstanding  the  opinion  expressed  in  the  letter  from  the  Board 
of  Trade  to  the  Governor  of  Massachusetts,  of  3(Jth  October,  1700,  of 


(e)  Not  the  river  of  the  same  name  which  falls  into  the  Bay  of  Fundy,  but  the 
■mailer  stream  which,  from  the  north,  falls  into  the  mouth  of  the  tirvt  Bt.  Lawrence. 

I* 


mmm 


m 


:  mi 


i  ii. 


M 


mil!: 


O  IlfTRODVCTIOIV. 

the  extent  of  the  cession  made  by  the  treatj  of  Ryswick ;  and  notwith- 
staDding  the  opinion  of  the  law  officers  of  the  Crown,  of  August  11th, 
1731  ;  the  attempt  to  dispute  the  right  of  Massachusetts,  at  least  to  the 
country  lying  east  of  Penobscot,  was  again  renewed  immediately  after 
the  treaty  of  peace  between  Great  Britain  and  France  of  1763. 

The  Province  of  Massachusetts  having  made  a  grant  to  Governor 
Bernard,  of  an  Island  lying  east  of  the  river  Penobscot,  and  which  re« 
quired  the  confirmation  of  the  Crown  ;  the  Board  of  I'rade,  in  a  letter 
of  March  11th,  1763,  to  the  Governor,  say : 

« It  may  appear  proper  to  observe  to  you,  that  the  doubt  conceived 
upon  the  claim  of  the  Province  of  Massachusetts,  is  not  founded  upon 
the  ailegatinu  that  the  landi^  to  the  east  of  Penobscot,  were  not  in  posses- 
sion of  the  Crown  at  the  time  of  granting  the  charter,  but  upon  the  oper- 
ation which  the  treaties  of  Ryswick  and  Breda,  (by  which  treaties,  this 
tract  of  country  was  ceded  to  France,)  should  be  admitted  to  have  had 
upon  the  charter  itself. 

"We  cannot  take  upon  us,  at  present,  to  say  how  far  all  future  consi- 
deration of  this  question  is  precluded  by  the  order  of  Council,  ground- 
ed upon  the  opinion  of  the  attorney  and  solicitor  general  in  1731 ; 
this  is  a  delicate  point  which  should  be  reserved  till  the  deed  shall  come 
regularly  before  us  ;  and,  in  the  mean  time,  we  cannot  think  it  expedi- 
ent to  advise  any  conditional  grant  whatever  of  this  Island." 

On  the  same  ground,  saving  clauses  were  annexed  to  the  description 
of  the  boundaries  of  the  Province  of  Nova  Scotia,  inserted  in  the  com. 
mission  of  Montague  Wilmot,  as  Governor  of  Nova  Scotia,  which  bears 
date  the  21st  of  November,  1708,  in  the  following  words,  viz :  Our 
Province  of  Nova  Scotia,  and  which  we  have  thought  proper  to  restrain 
and  comprise  within  the  following  limits,  viz :  To  the  northward  our 
said  Province  shall  be  bounded  by  the  southern  boundary  of  our 
Province  of  Quebec  as  far  as  the  western  extremity  of  the  Bay  des 

Chaleurs, and  to  the  westward,   «  although  our 

said  Province  has  anciently  extended,  and  does  of  right  extend  as  far 
as  the  River  Pentagoet  or  Penobscot,"  (d)  it  shall  be  bounded  by  a  line 
drawn  from  Cape  Sable  across  the  entrance  of  the  Bay  of  Fundy  to  the 
mouth  of  the  River  St.  Croix,  by  the  said  River  to  its  source,  and  by  a 
line  drawn  due  north  from  thence  to  the  southern  boundary  of  our  Colo- 
ny of  Quebec. 

[The  object  of  that  attempt  is  explained  in  a  letter  from  Jasper  Mau- 
duit,  agent  in  England  for  Massachusetts'  Bay,  to  the  General  Court  of 
that  Province,  dated  9th  June,  1764.  In  that  letter  the  Agent  states 
from  authority,  confirmed  by  a  subsequent  interview  with  Lord  Hills- 
borough, that  if  the  Province  will  pass  an  actempowering  their  agent  to 
<ede  to  the  Crown  all  pretence  of  right  or  title  they  may  claim  under 
their  Charter,  to  the  lauds  on  the  River  St.  Lawrjnce,  destintd  by  the 
Royal  Proclamation  to  form  part  of  the  Government  of  Quebec,  the 
Crown  will  then  waive  all  further  dispute  concerning  the  lands  as  far  as 
St.  Croix,  and  from  '.he  Sea  Coast  of  the  Bay  of  Fundy,  to  the  Be  mds 


(d)  The  words  here  quoted,  are,  however,  omitted  in  all  the  subsequent  Commii- 
•ions,  including  that  of  John  Parr,  (dated  29th  Ju'y,  1782,  who  was  Governor  at 
the  datp  of  the  treaty  of  1783.)  The  Boundaries  prescribed  are  the  same  in  all  the 
Commissions. 


IlfTRODUCTIOK. 


d  notwith« 
iigust  nth, 
east  to  the 
■lately  aAer 
3. 

Governor 
I  which  re- 
in a  letter 

conceived 
inded  upon 
t  in  posses- 
u  the  oper- 
-eaties,  this 

0  have  had 

iture  consi- 
il,  ground- 
in  1731  ; 
shall  come 
it  expedi- 

jescription 

1  the  com- 
I'hich  bears 
viz :  Our 
to  restrain 
hward  our 
iry  of  our 
le  Bay  des 
bough  our 
end  as  far 

by  a  line 
ndy  to  the 
I,  and  by  a 
our  Colo- 

sper  Mau- 
il  Court  of 
ent  states 
ord  Hills- 
ir  agent  to 
lim  under 
d  by  the 
uebec, the 
}  as  far  as 
le  Be  inds 


It  Commit- 
Jovernor  at 
e  in  all  the 


of  the  Province  of  Quebec :  reserving  only  to  itself  the  right  of  appro- 
bation, as  before." 

Mr.  Mauduit  urges  an  acquiescence  with  that  prop?"«),  principally  en 
the  ground,  that  the  namno  tract  of  land  which  lay  beyond  the  sources 
of  all  the  Rivers  of  Massachusetts,  and  was  watered  by  those  which  run 
into  the  River  t'^t.  Lawrence,  could  not  be  an  object  of  any  great  conse- 
quence to  Masf achu^etts  i  though  it  was  absolutely  necessary  to  the 
Crown,  to  preserve  the  continuity  of  the  Government  of  Quebec] 

In  the  course  of  the  negotiations  which  terminated  in  the  treaty  of 
peace  of  1783  between  the  United  States  and  Great  Britain,  provision- 
al articles  were  agreed  between  the  plenipotentiaries,  subject  to  the  con- 
sideration of  his  Britannic  Majesty,  but  which  were  rejected.  Amongst 
these,  was  the  following  in  relation  to  boundaries,  viz  : 

"  The  said  states  are  bounded  north  by  a  line  to  be  drawn  from  the 
north-west  angle  of  Nova  Scotia  along  the  highlands,  which  divide  those 
rivers  that  empty  themselves  into  the  River  St.  Lawrence  from  those 
which  ftill  into  the  Atlatlic,  to  the  north-westernmost  head  of  Connec- 
ticut River ;  thence  down  along  the  middle  of  that  river  to  the  forty  tiflh 
degree  of  north  latitude,  and  thence  due  west  in  the  latitude  forty-five 
degrees  north  from  the  Equator,  to  the  north-western  most  side  of  the 
River  St.  Lawrence,  or  Cataraguy  ;  thence  straight  to  the  Lake  Nipis- 
sing,  and  thence  straight  to  the  source  of  the  River  Mississippi ;  west, 
by  a  line  to  be  drawn  along  the  middle  of  the  River  Mississippi,  to 
where  the  said  line  shall  intersec'  the  thirty-first  degree  of  north  lati- 
tude ;  south,  by  a  line  to  be  drawn  due  east  from  the  termination  of  the 
line  last  naentioned,  in  the  latitude  of  thirty-one  degrees  north  of  the 
Equator,  to  the  middle  of  the  River  Apalachicola,  or  Catahouche; 
thence  along  the  middle  thereof  to  its  junction  with  the  Flint  River ; 
thence  straight  to  the  head  of  St.  Mary's  River;  thence  down  along  the 
middle  of  St.  Mary's  River  to  the  Atlantic  Ocean  ;  and  east,  by  a  line 
to  be  drawn  along  the  middle  of  St.  John's  River  from  its  source 
to  its  mouth  in  the  Bay  of  Fundy  ;  comprehending  all  islands  within 
twenty  leagues  of  any  part  of  the  shores  of  the  United  Slates,  and  lying 
between  lines  to  be  drawn  due  east  from  the  points  where  the  aforesaid 
boundaries  between  Nova  Scotia  on  the  one  part,  and  East  Florida  on 
the  other,  shall  respectively  touch  the  Bay  of  Fundy  and  the  Atlantic 
Ocean." 

Pans,  8ih  October,  1782. 

A  true  copy  of  which  has  been  agreed  on  between  (he  American 
Commissioners  and  me,  to  be  submitted  to  His  Majesty's  consideration. 

(Signed)  R.  OSWALD. 

Alteration  to  be  made  in  the  treaty,  respecting  the  boundaries  of 
Nova  Scotia,  viz : 

«  East,  the  true  line  between  which  and  the  United  States  shall  be  set- 
tled by  Commissioners,  as  soon  as  conveniently  may  be  afler  the  war." 

The  preliminary  articles  of  peace,  finally  agreed  on,  3Qth  November, 
1782,  as  made  public  at  the  time,  are  the  same  with  those  of  the  defini- 
tive treaty  of  1783.  But,  to  those  preliminary  articles  of  1782,  the  fol- 
lowing secret  article,  bearing  the  same  date,  was  added.    It  was  omitted 


'^'. 

'<  ^ 


<:  I 


ilil'i 


8  INTRODUCTION. 

in  the  definitive  treaty  of  1783,  Florida  having  in  the  meanwhile  been 
ceded  to  Spain  by  Great  Britain. 

« It  19  hereby  understood  and  agreed  that  in  case  Great  Britain,  at 
the  conclusion  of  the  present  war,  shall  recover  or  be  put  in  possession 
of  West  Florida,  the  line  of  north  boundary  between  the  said  Province 
and  the  United  States  shall  be  a  line  drawn  from  the  mouth  of  the  River 
Yassous,  where  it  unites  with  the  Mississippi,  due  east  to  the  River  Apa- 
lachicola." 

The  preamble  of  the  treaty  of  peace,  concluded  the  3d  day  of  Sep- 
tember, 17S3,  between  the  United  States  and  his  Britannic  Majesty,  ex- 
presses the  mutual  wish,  to  establish  such  a  beneficial  and  satisfactory 
intercourse  between  the  two  countries,  upon  the  ground  of  reciprocal  ad- 
vantages and  mutual  convenience,  as  may  promote  and  secure  to  both 
perpetual  peace  and  harmony.  And  the  boundaries  of  the  United 
States  are  defined  in  the  following  words,  viz : 

"Article  1.  His  Britannic  Majesty  acknowledges  the  said  United 
States,  viz  :  New  Hampshire,  Massachusetts*  Bay,  Rhode  Island  and 
Providence  plantations,  Connecticut,  New- York,  New  Jersey,  Pennsyl- 
vania, Delaware,  Maryland,  Virginia,  North  Carolina,  South  Carolina, 
and  Georgia,  to  be  free,  sovereign,  and  independent  states  ;  that  he 
treats  with  them  as  such,  and  for  himself,  his  heirs  and  successors,  re. 
linquishes  all  claims  to  the  government,  property,  and  territorial  rights  of 
the  same,  and  every  part  thereof. 

"  Article  2.  And  that  all  disputes  which  might  arise  in  future  on  the 
subject  of  the  boundaries  of  the  said  United  i>!tates  may  be  prevented,  it 
is  hereby  agreed  and  declared,  ihat  the  following  are  and  shall  be  their 
boundaries,  viz :  from  the  north-west  angle  of  Nova  Scotia,  viz :  that 
angle  which  is  formed  by  a  line  drawn  due  north  from  the  source  of  the 
St.  Croix  River,  to  the  Highlands,  along  the  said  Highlands  which  di- 
vide those  rivers  that  empty  themselves  into  the  River  St.  Lawrence, 
from  those  which  fall  into  the  Atlantic  Ocean,  to  the  north.western- 
most  head  of  Connecticut  River ;  thence,  down  along  the  middle  of 
that  river,  to  the  forty-fifth  degree  of  north  latitude  ;  from  thence,  by  a 
line  due  west  on  said  latitude,  until  it  strikes  the  River  Iroquois  or  Ca- 
taraquy ;  thence,  along  the  middle  of  said  river,  into  Lake  Ontario, 
through  the  middle  of  said  Lake,  until  it  strikes  the  communication  by 
water  between  that  lake  and  Lake  Erie ;  thence,  along  the  middle  of 
said  communication  into  Lake  Erie,  through  the  middle  of  said  lake, 
until  it  arrives  at  the  water  communication  between  that  lake  and  Lake 
Huron  ;  thence,  along  the  middle  of  said  water  communication  into  the 
Lake  Huron ;  thence,  through  the  middle  of  said  lake,  to  the  water  commu- 
nication between  that  lake  and  Lake  Superior ;  thence,  through  Lake 
Superior,  northward  of  the  Isles  Royal  and  Philipeaux,  to  the  Long 
Lake ;  thence,  through  the  middle  of  the  said  Long  Lake,  and  the  water 
communication  between  it  and  the  Lake  of  the  Woods,  to  the  said  Lake 
of  the  Woods  ;  thence,  through  the  said  lake,  to  the  most  north-western 
point  thereof;  and  from  thence,  on  a  due  west  course,  to  the  River  Mis- 
sissippi ;  thence,  by  a  line  to  be  drawn  along  the  middle  of  the  said 
River  Mississippi,  until  it  shall  intersect  the  northernmost  part  of  the 
thirty-first  degree  of  north  latitude.  South,  by  a  line  to  be  drawn  due 
east  from  the  determination  of  the  line  last  mentioned,  in  the  latitude  of 
thirty-one  degrees  north  of  the  Equator,  to  the  middle  of  the  River 


INTRODUCTION. 


Apalachicola  or  Catahouche ;  thence,  along  the  middle  thereof,  to  its 
junction  with  the  Flint  River ;  thence,  straight  to  the  head  of  St. 
Mary's  River ;  and  thence,  down  along  the  middle  of  St.  Mary's  River, 
to  the  Atlantic  Ocean.  East,  by  a  line  to  be  drawn  along  the  middle 
of  the  River  St.  Croix,  from  Us  mouth  in  the  Bay  of  Fundy,  to  its 
source  ;  and,  from  its  source,  directly  north,  to  the  aforesaid  Highlands 
which  divide  the  rivers  that  fall  into  the  Atlantic  Ocean  from  those 
which  fall  into  the  River  St.  Lawrence :  comprehending  all  islands 
within  twenty  leagues  of  any  part  of  .he  shores  of  the  United  States,  and 
lying  between  lines  to  be  drawn  due  east  from  the  points,  where  the  afore- 
said boundaries  between  Nova  Scotia,  on  the  one  part,  and  East  Florida, 
on  the  other,  shall  respectively  touch  the  Bay  of  Fundy,  and  the  Atlantic 
Ocean ;  excepting  such  i^idiids  us  now  are,  or  heretofore  have  been, 
within  tlie  limits  of  the  said  Province  of  Nova  Scotia." 

Doubts  having  arisen  what  river  was  truly  intended  under  the  name 
of  the  Uiver  St.  Croix,  mentioned  in  the  aforesaid  treaty  of  peace,  and 
forming  a  part  of  the  boundary  therein  described,  that  question  was  re- 
ferred, by  virtue  of  the  fifth  article  of  the  treaty  of  1794,  to  the  final 
decision  of  Commissioners  to  be  appointed  in  the  manner  therein  pre- 
scribed :  And  both  parties  agreed,  by  the  said  article,  to  consider  such 
decision  as  final  and  conclusive,  so  as  that  the  same  should  never  there- 
after  be  called  into  question,  or  made  the  subject  of  dispute  or  difference 
between  them. 

The  Commissioners  appointed  in  conformity  with  the  said  fifth  arti- 
cle of  the  treaty  of  1794,  did.  by  their  declaration  of  October  25th,  1798, 
decide,  a  river  called  <'  Scoodiac,"  and  the  northern  branch  of  it  (called 
*'  Cheputnaticook,")  to  be  the  true  River  St.  Croix  intended  by  the 
treaty  of  peace,  that  its  mouth  was  in  the  Bay  of  Passamaquoddy  at  a 
place  called  Joe's  Point,  and  its  source  at  the  northernmost  head  spring 
of  the  northern  branch  aforesaid. 

By  the  treaty  of  peace  concluded  at  Ghent,  on  the  24th  of  December, 
1S14,  it  was  agreed  to  provide  for  a  final  adjustment  of  the  boundaries 
described  in  \he  treaty  of  1783,  whiuh  had  not  yet  been  ascertained  and 
determined,  embracing  certain  islands  in  the  Bay  of  Fundy,  and  the 
whole  of  the  boundary  line  from  the  source  of  the  River  St  Croix  to  the 
most  north-western  point  of  the  Lake  of  the  Woods. 

It  is  provided  by  the  fifth  article  of  the  said  treaty  as  follows  ; 

«  WfiEREAS  neither  that  point  of  the  Highlands  lying  due  north  from 
the  source  of  the  River  St.  Croix,  and  designated  in  the  former  treaty  of 
peace  between  the  two  Powers,  as  the  north-west  angle  of  Nova  Scotia, 
nor  the  north-western  most  head  of  Connecticut  River,  has  yet  been  as- 
certained ;  and  whereas  that  part  of  the  boundary  line  between  the  do- 
minions of  the  two  Powers,  which  extends  from  the  source  of  the  River 
St.  Croix,  directly  north,  to  the  above-mentioned  north-west  angle  of 
Nova  Scotia;  thence,  along  the  said  Highlands  which  divide  those 
rivers  that  empty  themselves  into  the  River  St.  Lawrence  from  those 
which  fall  into  the  Atlantic  Ocean,  to  the  north-western  most  head  of 
Connecticut  River ;  thence,  down  along  the  middle  of  that  river,  to  the 
forty -fifth  degree  of  north  latitude ; .  thence,  by  a  line  due  west,  on  said 
latitude,  until  it  strikes  the  River  Iroquois  or  Cataraquy,  has  not  yet  been 
surveyed ;  it  is  agreed  that  for  those  several  purposes,  two  Commission- 
ers shall  be  appointed,  sworn,  and  authorized  to  act,  &c 


Mi 


li'! 


.1: 


10 


INTRODUCTION. 


.    .    .     .     .     .    The  said  Commissioners  shall  have  power  to  as^ 

certain  and  determine  the  points  above-mentioned,  in  conformity  with 
the  proviaion$  of  the  aaid  treaty  of  peace  of  1783,  and  shall  cause  the 
boundary  aforesaid,  from  the  source  of  the  Kiver  St.  Croix  to  the  River 
Iroquois  or  Cataraquy,  to  be  surveyed  and  marked  according  to  the  said 
provisions.  The  said  Commissioners  shall  make  a  map  of  the  said 
boundary  and  annex  to  it  a  declaration  under  their  hands  and  seals,  cer- 
tifying it  to  be  the  true  map  of  the  said  boundary,  and  particularizing  the 
latitude  and  longitude  of  the  north-west  angle  of  Nova  Scotia,  of  the 
northwestern  most  head  of  Connecticut  River,  and  of  such  other  points 
of  the  said  bounoary  as  they  may  deem  proper.  And  both  parties  agree 
to  consider  such  map  and  declaration  as  finally  and  conclusively  fixing 
the  said  boundary." 

The  same  article  further  provides  for  the  reference  to  a  friendly  Sov- 
ereign or  State,  in  the  event  of  the  Commissioners  diflfering,  or  of  both, 
or  either  of  them,  refusing,  declining,  or  omitting  to  act. 

The  Commissioners  appointed  in  conformity  with  the  said  fifth  arti- 
cle, after  sitting  near  five  years,  could  not  agree  on  any  of  the  matters 
referred  to  them,  nor  even  on  a  general  map  of  the  country  exhibiting 
the  Boundaries  respectively  claimed  by  each  party.  They  accordingly 
made  separate  report'^  to  both  Governments,  stating  the  points  on  which 
they  differed,  and  the  grounds  upon  which  their  respective  opinions  had 
been  formed. 

The  case  having  arisen  which  rendered  it  necessary  to  refer  the  points 
of  diflerence  to  a  friendly  Sovereign  or  State,  the  two  Powers  found  it 
expedient  to  regulate  the  proceedings,  and  make  some  further  provision 
in  relation  to  the  said  reference  ;  and,  on  the  a9th  of  September,  1827, 
concluded  a  Convention  to  that  effect,  which  amongst  other  provisions, 
stipulates,  viz : 

ARTICLE  II. 

The  reports  and  documents,  thereunto  annexed,  of  the  Commission- 
ers appointed  to  carry  into  execution  the  fifth  article  of  the  Treaty  of 
Ghent,  being  so  voluminous  and  complicated,  as  to  render  it  improba- 
ble that  any  Sovereign  or  State  should  be  willing  or  able  to  undertake 
the  ofiice  of  investigating  and  arbitrating  upon  them,  it  is  hereby  agreed 
to  substitute  for  those  reports,  new  and  separate  statements  of  the  respec- 
tive cases,  severally  drawn  up  by  each  of  the  contracting  Parties,  in 
such  form  and  terms  as  each  may  think  fit. 

The  said  statements,  when  prepared,  shall  be  mutually  communicated 
to  each  other  by  the  contracting  parties,  that  is  to  say  :  by  the  United 
States  to  His  Britannic  Majesty's  Minister  or  Charge  d'Affaires  at  Wash- 
ington, and  by  Great  Britain  to  the  Minister  or  Charg^  d' Affaires  of  the 
United  States  at  London,  within  fifteen  months  after  the  exchange  of 
the  ratifications  of  the  present  Convention. 

After  such  communication  shall  have  taken  place,  each  Party  shall 
have  the  power  of  drawing  up  a  second  and  definitive  statement,  if  it 
think  fit  so  to  do,  in  reply  to  the  statement  of  the  other  Parly,  so  com- 
municated ;  which  definitive  statements  shall  also  be  mutually  commu- 
nicated, in  the  same  manner  as  aforesaid,  to  each  other,  by  the  contract- 


INTRODUCTION. 


11 


ing  Parties,  within  twenty-one  mouths  after  the  exchange  of  the  ratifi- 
cations of  the  present  Convention. 

ARTICLE  III. 

Each  of  the  contracting  parties  shall,  within  nine  months  after  the 
exchange  of  ratifications  of  this  Couveation,  communicate  to  the  other, 
in  the  same  manner  as  aforesaid,  all  the  evidence  intended  to  be  brought 
in  support  of  its  claim,  beyond  that  which  is  contained  in  the  reports  of 
the  Commissioners,  or  papers  thereunto  annexed,  and  other  written 
douments  laid  before  the  Commission,  under  the  fifth  article  of  the 
Treaty  of  Ghent. 

Each  of  the  contracting  Parties  shall  be  bound,  on  the  application  of 
the  other  Party,  made  within  six  months  after  the  exchange  of  the  ratifi- 
cations of  this  Convention,  to  give  authentic  copies  of  such  individu- 
ally  specified  acts  of  a  public  nature,  relating  to  the  territory  in  ques- 
tion, intended  to  be  laid  as  evidence  before  the  Arbiter,  as  have  been 
issued  under  the  authority,  or  are  in  the  exclusive  possession  of  each 
Party. 

No  maps,  sun'eys,  or  topographical  evidence  of  any  description,  shall 
be  adduced  by  either  Party,  beyond  that  which  is  hereinafter  stipulated, 
nor  shall  any  fresh  evidence  of  any  description,  be  adduced  or  adverted 
to,  by  either  Party,  other  than  that  mutually  communicated  or  applied 
for,  as  aforesaid. 

Each  Party  shall  have  full  power  to  incorporate  in,  or  annex  to,  either 
its  first  or  second  statement,  any  portion  of  the  reports  of  the  Commis- 
sioners or  papers  thereunto  annexed,  and  other  written  documents  laid 
before  the  Commission  under  the  fifth  article  of  the  Treaty  of  Ghent,  or 
of  the  other  evidence  mutually  communicated  or  applied  for  as  above 
provided,  which  it  may  think  fit. 

ARTICLE  IV. 

The  map  called  Mitchell's  map,  by  which  the  framers  of  the  Treaty 
of  1783  are  acknowledged  to  havo  regulated  their  joint  and  official  pro* 
ceedings,  and  the  map  A,  which  has  been  agreed  on  by  the  contracting 
Parties,  as  a  delineation  of  the  water  courses,  and  of  the  boundary  lines  in 
reference  to  the  said  water  courses,  as  contended  for  by  each  Party  respec- 
tively, and  which  has  accordingly  been  signed  by  the  above  named 
Plenipotentiaries,  at  the  same  time  with  this  Convention,  shall  be  an- 
nexed to  the  statements  of  the  contracting  Parties,  and  be  the  only  maps 
that  shall  be  considered  as  evidence,  mutually  acknowledged  by  the  con- 
tracting Parties,  of  the  topography  of  the  country. 

It  shall,  however,  be  lawful  for  either  Party,  to  annex  to  its  respective 
first  statement,  for  the  purposes  of  general  illustration,  any  of  the  maps, 
surveys,  or  topographical  delineations,  which  were  filed  with  the  Com. 
missioners  under  the  fifth  article  of  the  Treaty  of  Ghent,  any  engraved 
map  heretofore  published,  and  also  a  transcript  of  the  above  mentioned 
map  A,  or  of  a  section  thereof,  in  which  transcript  each  party  may  lay 
down  the  highlands,  or  other  features  of  the  country,  as  it  shall  think 
fit ;  the  water  courses  and  the  boundary  lines,  as  claimed  by  each  party, 
remaining  as  laid  down  in  the  said  map  A. 

But  this  transcript  as  well  as  all  the  other  maps,  surveys,  or  topo> 
graphical  delineations,  other  than  the  map  A,  and  Mitchell's  map,  in- 


>:.!: 


i  I 


i 


m 


ill'! 


i' 


W  INTRODUCTION. 

tended  to  be  thus  annexed,  by  either  Party,  to  the  respective  statements, 
ihall  be  cominuaicated  to  tho  other  Party,  in  the  same  manner  as  afore- 
said, within  nine  months  ai'ter  the  exchange  of  the  ratifications  of  this 
Convention,  and  shall  be  subject  to  such  objections  and  observations, 
as  the  other  contracting  Party  may  deem  it  expedient  to  malte  thereto,  and 
shall  annex  to  his  first  statemeut^  either  in  the  margin  of  such  transcript 
map  or  maps,  or  otherwise. 

[Where  map  A  and  M itchell's  map  difTer  one  from  the  other,  they  must 
of  course,  be  considered  as  evidence  mutually  ackuowledged  ;  the  map 
A,  of  the  actual  topography  of  the  country,  and  Mitchell's  map,  of  the 
topography  as  it  was  understood  by  tho  framers  of  the  treaty  of  1783. 

The  said  map  A,  was  prepared  at  London,  in  the  year  1S27,  under 
the  superintendence  of  the  British  and  American  plenipotentiaries,  by 
the  late  Mr.  Tiarks,  the  astronomer  employed  on  the  part  of  Great 
Biitain  in  the  proceedings  of  the  joint  Commission  under  the  Treaty 
of  Ghent. 

The  King  of  the  Netherlands  having  been  selected  by  the  two  Gov- 
ernments as  Arbiter,  each  laid  before  him,  nx  conformity  with  the  pro- 
visions of  that  Convention,  all  the  evidence  intended  to  be  brought  in 
support  of  its  claim  and  two  separate  statements  of  the  respective  cases. 
Those  four  statements,  which  embrace  the  arguments  at  large  of  each 
party  respectively,  have  been  printed  but  not  published. 

Whichsoever  Highlands  might  be  decided  by  the  commissioners,  or 
by  the  Arbiter,  to  be  the  highlands  contemplated  by  the  treaty  of  1783  ; 
the  north  west  angle  of  Nova  Scotia  is  expressly  prescribed  by  that  treaty 
to  be  on  the  Highlands,  and  the  boundary  to  extend  from  that  angle, 
along  the  said  Highlands  which  divide,  &c.,  to  the  north- western- most 
head  of  Connecticut  River. 

According  to  the  award  of  the  King  of  the  Netherlands,  the  termina- 
tion of  the  line  drawn  due  north  from  the  source  of  the  River  St.  Croi::, 
that  is  to  say,  the  northwest  angle  of  Nova  Scotia,  is  placed  in  the  bed 
(le  milieu  du  thalweg)  of  the  River  St  John  :  and  the  boundary,  from 
that  point  to  the  southwestern  most  source  of  the  River  St.  Francis  (distant 
about  76  miles  in  a  straight  line)  is  along  the  bed  of  the  Rivers  St. 
John  and  St.  Francis.  Neither  the  angle,  nor  the  boundary  are  on, 
and  along  Highlands  according  to  the  provisions  of  the  treaty  of  1783 ; 
and  the  award  was  not  therefore  binding  on  either  Great  Britain  or  the 
United  States.  His  Majesty  the  King  of  the  Netherlands  seems  in- 
deed to  have  viewed  it  in  the  same  light,  and  only  as  a  declaration  of 
what  he  considered,  under  all  the  circumstances  of  the  case,  as  an  equit- 
able division  of  the  disputed  territory.  For  he  does  not  decide  what 
is  the  north  west  angle,  nor  that  the  proposed  Une  is,  or  must  be  consi- 
dered as  the  boundary,  (terms  used  by  him  in  retbrence  to  the  northwest- 
ernmost  head  of  the  Connecticut  River,)  but  that  it  will  be  attilable,  or, 
convenient,  (il  conviendra)  to  adopt,  for  the  limit  of  the  two  states,  the 
line  as  above  stated. 

However  disposed  the  Government  of  the  United  States  might  have 
been  to  acquiesce  in  any  decision,  avowedly  declared  by  the  Arbiter  to 
be  in  conformity  with  the  treaty  of  1783,  that  is  to  say,  determining  and 
not  varying  the  boundaries  designated  by  that  treaty ;  it  had  not  the 
power  voluntarily  to  vary  those  boundaries  without  the  consent  of  the 
State  affected  by  such  alteration.    Against  that  alteration,  the  State  of 


•  INTRODUCTION. 


Btatementflf 
er  aa  afore- 
oiiB  of  this 
iservatioM) 
thereto,  and 
\i  transcript 

',  thoy  must 
1 ;  the  map 
nap,  of  th« 
of  17S3. 
S27,  under 
ntiaries,  by 
t  of  Great 
the  Treaty 

e  two  Gov- 
ith  the  pro- 
brought  in 
ctive  cases, 
rge  of  each 

sioners,  or 
y  of  1783 ; 
y  that  trea^ 
that  angle, 
38tern-most 


Maine  untered  a  solemn  protest  bv  their  resolutions  of  IPth  January, 
1632.  And  the  Senate  of  the  United  States  did  accordinjly  refuse  to 
give  its  assent  to  the  award.] 


The  Statements  of  the  case,  respectively  laid  by  the  two  Powers  be- 
fore the  King  of  the  Metherlanda,  are  those  which,  in  the  following 
essay,  are  called  the   "American"   and  the   "British"   Statements. 

Subsequent  to  the  treaty  of  1783,  the  Province  of  Nova  Scotia,  which 
at  the  date  of  that  treaty,  was  contiguous  to  the  United  States,  has  been 
divided,  by  the  British  Government,  into  two  Provinces ;  the  south- 
eastern part,  or  peninsula,  retaining  the  name  of  Nova  Scotia,  and  the 
north-western  part,  which  is  that  adjacent  to  the  United  States,  hav- 
ing been  erected  into  a  new  Province,  by  the  name  of  New  Bruns- 
wick. 

The  British  Province  of  Quebec,  as  it  was  called  at  the  date  of  the 
treaty  of  1788,  has  also  been  since  divided  into  two  Provinces,  viz  : 
Upper  Canada  and  Lower  Canada  ;  this  last  being  that  which  is  con- 
tiguous to  the  United  States,  as  far  west  as  the  Boundary  now  in  discus- 
sion extends. 

On  the  other  hand,  that  portion  of  the  State  of  MasBachusetts,  lying 
east  of  the  Slate  of  New  Hampshire,  which  was,  at  the  date  of  the  treaty 
of  1783,  known  by  the  name  of  Province  of  Maine,  and  extended  east- 
wardly  as  far  as  the  then  Province  of  Nova  Scotia,  has  been  since  erect- 
ed into  a  State  by  the  name  of  Maine,  admitted  as  such  into  the  Union, 
and  is  now  contiguous  to  the  British  Provinces  of  New  Brunswick  and 
Lower  Canada. 


le  termina- 
St.  Croi:£, 
n  the  bed 
ary,  from 
cis  (distant 
livers  St 
ry  are  on, 

of  1783 ; 
lain  or  the 
seems  in- 
aration  of 
s  an  equit- 
ecide  what 

be  consi- 
northwest- 
litable,  or, 
states,  the 

light  have 
Arbiter  to 
ining  and 

not  the 
3ut  of  the 

State  of 


§1. 
American  "^ine. 

The  River  Scoodiac  having  been  determined  to  be  the  true  River  St. 
Croix,  a  monument  has  been  erected  at  its  source,  which  is  mutually 
acknowledged  as  the  point  of  departure,  whence  the  boundary  is  a  due 
north  line  to  the  highlands  designated  by  the  treaty  of  1783.  What  are 
the  highlands  thus  designated,  is  the  question  at  issue. 

As  the  description  of  the  boundary  line  of  the  United  States,  in  the 
treaty  of  1783  commences,  so  also  it  terminates,  at  the  north-west  angle 
of  Nova  Scotia.  In  order,  therefore,  to  include  the  whole  line  from  the 
River  St.  Croix  to  the  sources  of  the  Connecticut  River,  it  is  neces- 
sary to  bring  together  and  connect  the  former  and  the  latter  clause  de- 
scriptive of  the  Boundary,  in  the  second  article  of  the  treaty.  They  are 
as  follows,  viz  : 

"  From  the  north-west  angle  of  Nova  Scotia,  viz  :  that  angle  which 
is  formed  by  a  line  drawn  due  north  from  the  source  of  St.  Croix  River 

2 


is 


:u 


,  1 


14 


Terrna  of  the  Treaty* 


to  the  Highlands ;  along  the  said  Highlands  which  divide  those  rivers 
that  empty  themselves  into  the  River  St.  Lawrence,  from  those  which 
fall  into  the  Atlantic  Ocean,  to  the  P'^rth-westernmost  head  of  Connec- 
ticut River, hi^i  by  a  line  to  be  drawn  along  the 

middle  of  the  River  St.  Croix,  from  its  mouth  in  the  Bay  of  Fundy  to 
its  source,  and  from  its  source  directly  north  to  the  aforesaid  highlands 
which  divide  the  rivers  that  fall  into  the  Atlantic  Ocean  from  those  which 
fall  into  the  River  St.  Lawrence." 

In  the  first  clause,  the  due  north  line  terminates  at  the  Highlands 
generally  ;  but  in  the  latter  clause,  the  same  north  line  is  declared  to 
extend  to  the  aforv^said  highlands,  which  divide  the  rivers  that  fall  into 
the  Atlantic  Ocean  from  those  which  fall  into  the  River  St.  Lawrence. 
And  moreover,  in  the  first  clause,  the  highlands  at  which  the  due  north 
line  terminates  are,  by  the  word  sat'cl,  which  almost  immediately  follows, 
identified  with  the  highlands  which  divide  the  rivers  as  aforesaid. 

The  north-west  angle  of  Nova  Scotia  is  therefore  defined  by  the 
treaty,  as  being  formed  by  the  intersection  of  a  line  drawn  due  north 
from  the  source  of  the  R  iver  St.  Croix  with  the  highlands  aforesaid :  and 
the  summit  of  that  angle  is  at  the  point  of  intersection,  and  must  neces- 
sarily be  on  the  very  highlands,  which  divide  the  rivers  that  empty  them- 
selves into  the  River  St.  Lawrence,  from  those  which  fall  into  the 
Atlantic  Ocean. 

The  angle  formed  by  the  due  north  line  with  the  Highlands  describ- 
ed by  the  treaty,  which  extend  from  the  termination  of  that  due  north 
line  to  the  north-westernmost  head  of  Connecticut  River,  is  the  north- 
east angle  of  the  United  States. 

The  north-west  angle  of  Nova  Scotia  is  necessarily  formed  by  the 
western  boundary  of  that  Province,  which  divides  it  from  the  United 
States,  and  by  its  northern  boundary  which,  extending  eastwardly  from 
the  termination  of  the  due  north  line,  divides  it  from  Canada. 

Those  two  angles  have  a  com;non  side,  viz  :  the  due  north  line  ;  and 
the  termination  of  that  line  is  the  common  summit  of  both. 

The  object  of  the  treaty  was  to  declare  with  precision  the  boundaries 
between  the  United  States  and  Great  Britain.  But  the  boundary  be- 
tween Nova  Scotia  and  the  other  dominions  of  Great  Britian  in  that 
quarter,  depended  on  the  acts  of  Great  Britain  alone,  and  was  a  subject 
foreign  to  the  purposes  of  the  treaty. 

The  description  of  the  boundary  of  the  United  States  would  have 
been,  without  any  reference  to  the  north-west  angle  of  Nova  Scotip  as 
complete  and  inteliigible  by  defining  it  as  follows,  viz :  "  East  by  a  line 
to  be  drawn  along  the  middle  of  the  River  St  Croix,  from  its  mouth  in 
the  Bay  of  Fundy,  to  its  source  ;  and  from  its  source,  directly  north,  to 
the  aforesaid  Highlands,  which  divide  the  rivers  that  fall  into  Ihc  Atlaa- 


r 


American  Line, 


15 


le  rivers 
le  which 
Connec- 
loDg  the 
fundy  to 
ighlands 
ise  which 

[ighlands 
3clared  to 
t  fall  into 
iawrence. 
due  north 
ly  follows, 
id. 

ed  by  the 
due  north 
isaid:  and 
lust  neces- 
npty  ihem- 
ili  into  the 

Is  describ- 
ue  north 
the  north* 

med  by  the 
16  United 
ardly  from 

• 

I  line ;  and 

)oundaries 
jndary  be- 
ian  in  that 
a  a  subject 

would  have 
Scotip  as 
t  by  a  line 
s  mouth  in 
y  north,  to 
the  Atlan- 


tic Ocean  from  those  which  fall  into  the  River  St.  Lawrence ;  and 
thence,  along  the  said  Highlands  which  divide,  &c.,  to  the  north-western 
most  head  of  Connecticut  River." 

The  only  object  which  could  he  had  in  view,  in  mentioning  the 
north-west  angle  of  Nova  Scotia  in  the  treaty,  was  to  refer  to  a  point, 
the  position  of  which  had  been  previously  designated  by  the  public  acts 
of  Great  Britain.  Whether  the  place  of  beginning  was,  or  was  rot,  the 
uorth-west  angle  of  Nova  Scotia,  vi'as,  unless  for  the  sake  of  reference 
to  a  point  previously  designated,  wholly  foreign  to  the  object  of  the  treaty. 

The  only  previous  public  British  acts,  in  which  the  limits  of  Nova 
Scotia  were  laid  down,  are  the  grant  of  that  P'.  vince  to  Sir  William 
Alexander  in  1621,  and  the  commissions  of  its  governors,  from  the  year 
1763  to  the  year  1782.  The  difference  between  the  limits  of  the  grant, 
and  those  described  in  the  commissions,  will  be  adverted  to  hereafter. 
And  in  those  commissions,  Nova  Scotia  is  declared  to  be  bounded 
to  the  westward,  by  a  line  drawn  from  Cape  Sable^  across  the  en- 
trance of  the  Bay  of  Fundy,  to  the  mouth  of  the  River  St.  Croix  ;  by 
the  said  river  to  its  source ;  and  by  a  line  drawn  due  north  from  thence 
to  the  southern  boundary  of  our  colony  of  Quebec,  (a) 

The  southern  boundary  of  the  Province,  Colony  or  Government  of 
Quebec  is  declared,  by  the  Royal  proclamation  of  1763,  and  by  the 
Quebec  act  of  1774,  to  be,  along  the  Highlands  which  divide  the  rivers 
that  empty  themselves  into  the  River  St.  Lawrence,  from  those  which 
fall  into  the  sea. 

The  north-west  angle  of  Nova  Scotia  thus  previously  described,  is 
necessarily  that  to  which  the  treaty  refers  :  and  the  dividing  Highlands 
designated  by  the  treaty  are  thereby  identified,  with  those  declared  by 
the  acts  aforesaid,  to  be  the  southern  boundary  of  the  Province  of 
Quebec. 

The  precise  spot,  where  the  north-west  angle  of  Nova  Scotia  would 
be  found,  was  not  known  at  the  date  of  the  treaty.  It  could  not  be  as- 
Cv3rtained,  until  it  had  been  determined  which  river  was  the  St.  Croix, 
and  which  was  the  source  of  that  river  contemplated  by  the  treaty  ;  nor 
until  the  due  north  lino  from  that  source  had  been  surveyed,  as  far  as 
the  sources  of  p  river  emptying  itsalf  into  the  River  St.  Lawrence. 
When,  therefore,  the  north-west  angle  of  Nova  Scotia  is  said,  in  the 
treaty,  to  be  formed,  &c.  this  expression  must  be  understood,  as  prescrib- 
ing tl"    rules  by  which,  (and  therefore  the  spot  where,)  it  would  be  found. 

(a)  In  the  commission  of  Montague  Wilmot,  dated  2l8t  of  November,  1763,  the 
following  proviso  is  added  after  the  words,  to  the  westward,  viz  :  "  although  our 
said  Provincfi  has  anciently  extended  and  does  of  right  extend  as  far  as  the  River 
Pentagoet  or  Penobscot."  The  proviso  is  omitted  in  all  the  subsequent  com- 
miBsion*. 


:       ! 


'ii: 


P: 


III 


11 


I    111 


16 


Terms  of  the  Treaty, 


All  those  objects  have  now  been  accomplished ;  and  from  that  monu- 
ment at  the  source  of  the  St.  Croix,  which  has  been  determined  to  be  the 
point  of  departure,  the  due  north  line  has  been  aunreyed  one  hundred  and 
forty-four  miles,  to  the  source  of  a  stream  which  falls  into  the  River  St. 
Lawrence. 

According  to  the  express  words  of  the  treaty,  the  boundary  line 
through  its  whole  extent,  from  the  north-west  angle  of  Nova  Scotia,  to 
the  north-western  most  head  of  Connecticut  River,  must  be  along  the 
highlands  which  divide  those  rivers  that  empty  themselves  into  the 
River  St.  Lawrence,  from  those  which  fall  into  the  Atlantic  Ocean. 

The  words  "  highlands  which  divide  the  rivers,"  are  inseparable  ;  the 
term  «  Highlands  "  in  its  general  sense,  and  undefined  by  any  adjunct, 
being  one  of  relative  import  and  indeterminate  signification. 

Had  the  term  "  Highlands,"  been  used  alone  in  the  treaty,  there  would 
have  been  no  certain  criterion  by  which  to  ascertain  what  were  the 
highlands  intended.  And  it  would  have  been  impracticable,  amongst 
the  different  lines  which  mighi  be  suggested  through  a  country,  inter- 
sected by  numerous  broken  ridges,  to  decide  which  was  entitled  to  pre- 
ference. 

It  is  the  property  of  dividing  the  rivers,  therefore,  which  affixes  a 
specific  and  precise  meaning  to  the  general  expression  of  "  Highlands ;" 
and  which  determines  both  the  northwest  angle  of  Nova  Scotia  and  the 
Boundary  line  extending  thence  to  the  north-western  most  head  of  Con- 
necticut River  It  is  that  property,  (what,  in  French,  is  called,  "  Point 
de  Partage,")  which  constitutes  the  essence  of  the  treaty  definition. 

Avoiding  accordingly  the  words,  "  mountains,"  «  hills,"  or  any  such 
as  might  have  been  derived  from,  or  indicative  of,  the  peculiar  nature 
of  the  ground,  the  general  expression  <<  Highlands"  was  adopted,  as  ap- 
plicable to  any  ground,  (whatever  might  he  its  nature  or  elevation,) 
along  which  the  line  dividing  the  rivers  should  be  found  to  pass  :  the 
fact,  that  the  ground  dividing  rivers  is  necessarily  more  elevated  than 
those  rivers  and  the  country  adjacent  to  their  banks,  being  sufiicient  to 
entitle  it  to  the  designation  of  "  Highland,"  in  relation  to  those  rivers 
and  to  that  coimtry. 

No  Highlands  can  divide  the  rivers  that  fall  into  the  Atlantic  Ocean 
from  those  '"hich  fall  into  the  River  St.  Lawrence,  but  those  Highlands 
in  which  the  rivers  thus  designated,  or  their  tributary  streams,  have  their 
respective  sources,  and  thence  flow  in  different  directions,  to  the  Ocean 
and  to  the  St.  Lawrence,  respectively.  The  map  A.  shows  that  there 
are,  along  the  line  drawn  due  north  from  the  source  of  the  River  St. 
Croix,  but  two  places,  which  divide  rivers  thus  flowing  in  different  di- 
rections^ and  in  which  those  rivers  have  their  respective  sources. 

The  due  north  line  from  the  source  of  the  River  St.  Croix,  crosses 


American  Line, 


17 


iiat  monu- 

I  to  be  the 

ndred  and 

River  St. 

idarj  line 
Scotia,  to 
along  the 

3  into  the 

cean. 

irable ;  the 

ly  adjunct, 

:here  would 
t  were  the 
e,  amongst 
ntry,  inter- 
tled  to  pre- 

h  affixes  a 
[ighlands ;" 
tia  and  the 
lad  of  Con- 
ed, «  Point 
nition. 
3r  any  such 
iar  nature 
pted,  as  ap- 
elevatiou,) 
pass  :  the 
3vated  than 
sufficient  to 
hose  rivers 

ntic  Ocean 
Highlands 
,  have  their 
the  Ocean 
that  there 
River  St. 
Afferent  di- 
ces, 
ix,  crosses 


no  other  rivers,  for  a  distance  exceeding  ninety  miles,  but  tributary 
streams  of  the  River  St.  John,  and  that  river  itself.  There  is  not 
along  the  line,  through  the  whole  of  that  distauce,  a  single  point  that 
divides  rivers  falling  into  the  Atlantic  Ocean  from  those  falling  into 
the  River  St.  Lawrence,  or  that  divides  any  other  water  courses  what- 
ever, but  such  as  fall  into  one  and  the  same  river,  viz :  the  River  St. 
John. 

At  about  ninety  seven  miles  from  the  source  of  the  River  St.  Croix, 
the  due  north  line  reaches  a  ridge  or  Highland  which  divides  tributary 
streams  of  the  River  St.  John,  which  falls  into  the  Bay  of  Fundy,  from 
the  waters  of  the  River  Ristigouche,  which  falls  through  the  Bay  des 
Chaleurs,  into  the  Gulf  of  St.  Lawrence.  And,  in  its  further  north 
course,  the  said  line,  ailer  crossing  several  upper  branches  of  the  River 
RisMgouche,  reaches,  at  the  distance  of  about  140  miles  from  the  source 
of  I  e  River  St.  Croix,  the  Highlands  which  divide  the  waters  of  the 
said  River  Ristigouche  from  the  tributary  streams  of  the  River  Metis, 
which  falls  into  the  River  St.  Lawrence.  It  is  clear  that  there  is  no 
other  possible  choice  but  between  those  two  places,  and  that  the  north- 
west angle  of  Nova  Scotia  must,  of  necessity,  be  found  at  the  intersec- 
tion of  the  said  due  north  line  with,  either  ihe  Highlands  which  divides 
the  waters  of  the  River  St.  John  from  those  of  the  River  Ristigouche, 
or  the  Highlands  which  divide  the  waters  of  the  River  Ristigouche  from 
those  of  the  River  Metis  ;  since  there  is  no  other  point,  through  the 
whole  course  of  the  due  north  line,  which  divides  any  other  waters  but 
such  as  empty  themselves  into  the  same  river. 

The  selection  between  those  ♦wo  dividing  Highlands  evidently  de- 
pends on  what  is  meant,  according  to  the  treaty  of  1783,  by  rivers  that 
empty  themselves  or  fall  into  the  River  St.  Lawrence,  and  .  ^  rivers 
which  fall  into  the  Atlantic  Ocean. 

The  treaty  recognizes  but  two  classes  of  rivers.  The  first  class  em- 
braces only  the  rivers  falling  into  a  river,  designated  by  its  specific  name, 
and  cannot  be  construed  to  include  any  rivers  that  do  not  empty  them- 
selves into  the  river  thus  specially  designated.  All  the  rivers,  met  by 
the  due  north  line,  which  do  not  actually  empty  themselves  into  the 
River  St.  Lawrence,  according  to  its  known  limits,  are,  by  the  treaty, 
considered  as  falling  into  the  Atlantic  Ocean. 

The  limits  of  the  River  St.  Lawrence  are  defined  by  the  royal  procla- 
mation of  1763,  in  which  the  western  boundary  of  the  Government  of 
Quebec  is  described,  as  crossing  the  mouth  of  the  River  St.  Lawrence, 
from  Cape  Rosiers  to  the  Labrador  Coast.  The  Bay  des  Chaleurs 
being  south  of  Cape  Rosiers,  the  River  Ristigouche  does  not  fall  into 
the  River  St.  Lawrence. 

The  north-west  angle  of  Nova  Scotia  is  therefore,  as  the  United  States 


18 


Terms  of  the  Treaty. 


ml 

ill!  ! 


'i  :  ,    I  . 


I .  -it 


! 
iiiiiii]  ' 


insist,  and  have  uniformly  insisted,  that  spot  on  the  due  north  line, 
(about  140  niiles  from  the  source  of  the  River  St.  Croix,)  where  that 
line  is  intersected  by  the  highlands,  which  there  divide  the  sources  of  a 
branch  of  the  River  Metis  which  empties  itself  into  the  River  St.  Law- 
rence, from  the  sources  of  a  branch  of  the  River  Ristigouche,  which  falls 
through  the  Bay  des  Chaleurs  and  the  Gulf  of  St.  Lawrence,  into 
the  Atlantic  Ocean.  And  the  boundary  line  extends,  as  the  United 
States  insist,  and  have  uniformly  insisted,  through  its  whole  extent,  from 
the  angle  above  described,  to  the  north-westernmost  head  of  Con- 
necticut River,  along  the  highlands  which  divide  the  sources  of  the 
several  rivers  (from  the  Metis  to  the  St.  Francis)  that  empty  themselves 
into  the  River  St.  Lawrence,  from  the  sources  of  the  tributaries  of  the 
Rivers  Ristigouche,  St.  John,  Penobscot,  Kennebec  and  Connecticut, 
all  which,  either  mediately  or  immediately,  fall  into  the  Atlantic  Ocean. 

That  line  is  delineated  on  the  map  A  ;  and  it  is  believed  that  a  single 
glance  at  that  map,  comparing  it  with  the  words  of  the  treaty,  will  in- 
stantaneously lead  to  the  same  conclusion. 

It  is  denied  on  the  part  of  Great  Britain,  that  the  boundary  thus  claim- 
ed by  the  United  States,  is  that  which  is  prescribed  or  intended  by  the 
treaty  principally,  if  not  exclusively,  on  two  grounds. 

1st.  That  the  Bay  of  Fundy,  as  mentioned  in  the  treaty  of  1783,  is, 
(as  well  as  the  Gulf  of  St.  Lawrence,)  intended  to  be  separate  and  dis- 
tinct from  the  Atlantic  Ocean  ;  and  that  the  River  St.  John,  which  falls 
into  the  Bay  of  Fundy,  (as  well  as  the  River  Ristigouche  which,  through 
the  Bay  des  Chaleurs,  falls  into  the  Gulf  of  St.  Lawrence,)  is  intend- 
ed, on  that  as  well  as  on  separate  grounds,  to  be  excepted  from  that 
class  of  rivers  which  are  described  in  the  treaty  as  falling  into  the  At- 
lantic Ocean: 

2dly.  That  the  ground,  over  which  the  boundary  line  claimed  by  the 
United  States  does  pass,  has  neither  the  mountainous  character,  nor  the 
continuous  elevation  necessary  to  entitle  it  to  the  designation  of  "high- 
lands," as  intended^  by  the  treaty ;  and  therefore,  that  the  Highlands, 
claimed  on  the  part  of  the  United  States,  conform  neither  in  position 
nor  character,  to  the  conditions  impose3  on  them  by  the  treaty. 

From  those  premises,  and  with  reference  particularly  to  the  asser- 
tion, that  the  River  St.  John  must  be  excepted  from  that  class  of  rivers 
described  in  the  treaty  as  falling  into  the  Atlantic  Ocean,  i'  's  inferred, 
on  the  part  of  Great  Britain,  that,  consequently  the  Highlands  described 
in  the  treaty  must  lie  to  the  southward  of  that  River.  And  it  is  further 
affirmed,  that  the  Highlands,  claimed,  on  the  part  of  Great  Britain,  a& 
those  designated  in  the  treaty  of  1783,  conform,  in  every  particular,  to 
the  conditions  imposed  on  them  by  that  treaty. 

Supposing,  that  the  objections  raised    against  the  boundary  line 


Bniiah  Line. 


19 


)rth  line, 
Inhere  that 
iroes  of  a 
St.  Law- 
/hich  falls 
nee,  into 
le  United 
:tent,  from 
of  Con- 
ies of  the 
hemaelves 
•ies  of  the 
tnnecticut, 
tic  Ocean, 
tat  a  single 
y,  will  in- 

thus  claitn- 
ided  by  the 

)f  1783,  is, 

te  and  dis- 

which  falls 

ch,  through 

is  intend- 

from  that 

to  the  At- 

|med  by  the 
ter,  nor  the 
of"high- 
|Highlands, 
[n  position 

the  asser- 
b  of  rivers 
's  inferred, 
described 
|t  is  further 
(Britain,  a^ 
jirticular,  to 

idary  Une 


. 


claimed  by  the  United  States  could  be  sustained,  it  would  not  at  all  fol- 
low, as  a  matter  of  course,  that  the  Highlands  described  in  the  treaty 
must  lie  to  the  southward  of  the  River  St.  John,  or  that  the  boundary 
line,  or  Highlands,  claimed  on  the  part  of  Great  Britain,  conform  with 
the  conditions  imposed  on  them  by  the  treaty.  And  before  those  ob- 
jections against  the  American  line  are  discussed,  it  will  be  necessary  to 
examine,  along  which  Highlands  the  British  line  is  placed,  and  on  what 
arguments  the  claim  to  that  line  is  founded. 


§  2. 
British  Line. 


The  north-west  angle  of  Nova  Scotia,  is,  by  the  treaty,  declared  to 
be  « formed  by  a  line  drawn  due  north  frotr.  the  source  of  St.  Croix 
River,  to  the  Highlands." 

Immediately  following  the  last  mentioned  words,  viz  :  "  to  the  High- 
lauds,"  the  words  (in  reference  to  the  boundaries,)  are  "  along  the  said 
Highlands,  which  divide  those  rivers  that  enr.pty  themselves  into  the  St. 
Lawrence,  from  those  which  fall  into  the  Atlantic  Ocean." 

The  words,  "  the  said  Highlands,"  identify,  therefore,  the  Highlands 
at  which  the  due  north  line  terminates,  with  the  Highlands  which  divide 
the  rivers  specified  by  the  treaty. 

The  east  boundary  of  the  United  States,  is  by  the  treaty  declared  to 
be  "  a  line  to  be  drawn  along  the  middle  of  the  River  St.  Croix,  from 
its  mouth  in  the  Bay  of  Fundy,  to  its  source  ;  and  from  its  source,  di- 
rectly north  to  the  aforesaid  Highlands  which  divide  the  rivers  that  fall 
into  the  Atlantic  Ocean,  from  those  which  fall  into  the  River  St.  Law- 
rence." 

Thus  the  line  drawn  due  north,  or  directly  north,  from  the  source  of 
St.  Croix  River,  is,  in  two  different  clauses  of  the  treaty,  declared  to  ex- 
tend to,  and  to  terminate  at,  the  Highlands  which  divide  the  rivers  de- 
signated by  the  treaty.  That  line  is  that  which  forms  the  north-west  ra- 
gle  of  Nova  Scotia.  The  northern  termination  of  that  line,  and  tHe 
summit  of  that  north-west  angle  are  identic.  It  appears  impossible  to 
have  devised  expressions  that  could,  with  greater  precision,  have  deter- 
mined the  position  of  the  north-west  angle  of  Nova  Scotia,  as  being 
that  point  on  the  Highlands  which  divide  the  rivers  specified  by  the 
treaty,  where  the  said  Highlands  are  intersected  by  the  line  drawn  due 
north  from  the  source  of  the  River  St.  Croix. 

By  the  fourth  article  of  the  convention  of  1827,  the  map  A,  signed  by 


II 


30 


TeiiiM  of  the  Treaty, 


I 


mil 


I' 
Mill 


i!| 


I''' 

iilp 


•  r 


the  plenipotentiaries  was  agreed  on  as  a  delineation  of  the  watercourses, 
and  of  the  boundary  lines  in  reference  to  the  said  water  courses,  as  con- 
tended for  by  each  party  respectively. 

The  point  B,  on  the  said  map  A,  is  declared  on  the  map  itself,  to  be 
the  north-west  angle  of  Nova  Scotia,  as  contended  for  by  Great  Britain  ; 
and  the  red  colour  is  likewise  declared  to  be,  that  which  denotes  the 
boundary  Hue  as  claimed  by  her.  That  such  are  respectively,  according 
to  the  treaty  of  17S3,  the  north-west  angle  of  Nova  Scotia  and  the  boun- 
dary line  between  the  two  countries,  has  uniformly  been  affirmed  on  the 
part  of  Great  Britain,  from  the  year  1S18,  when  her  claim  to  Ihat  extent 
was  first  disclosed,  to  the  present  year. 

That  spot  and  that  line  are  the  same,  which  the  British  Commission- 
er under  the  treaty  of  Ghent  did,  in  Ap.-il,  1822,  declare  to  conform  with 
the  said  treaty  ;  the  line  being,  as  he  says,  that  which  is  described  by 
the  red  line  on  a  certain  general  map  made  by  His  Majesty's  principal 
surveyor. 

That  point  B,  the  north-west  angle  of  Nova  Scotia,  as  contended  for 
on  the  part  of  Great  Britain,  is  situate  at  or  near  Mars  Hill,  on  the  due 
north  line,  about  forty  miles  north  from  the  source  of  the  River  St. 
Croix,  and,  as  the  British  agents  say,  on  the  first  Highland  which  that 
line  encounters. 

Mars  Hill,  so  far  from  being  a  Highland,  which  divides  the  rivers  that 
fall  into  the  Atlantic  Ocean,  from  those  which  fall  into  the  River  St. 
Lawrence,  is,  at  least,  one  hundred  miles  distant  in  every  direction, 
from  any  of  the  sources  of  any  of  the  rivers  that  empty  themselves  into 
the  River  St  Lawrence  ;  and  it  divides  no  other  rivers,  but  Gooscquick 
River,  from  the  River  Fresque  Isle ;  both  which  are  tributary  streams 
of  the  River  St.  John,  into  which  they  empty  themselves,  a  few  miles 
east  of  the  said  due  north  line. 

It  is  therefore  contended  on  the  part  of  Great  T  ritain,  that  the  north- 
west angle  of  Nova  Scotia,  described  by  the  treaty  as  being  formed  by 
the  due  north  line,  and  the  Highlands  which  divide  the  rivers  that  fall 
into  the  River  St.  Lawrence,  from  those  which  fall  into  the  Atlantic 
Ocean,  may  be  placed,  not  on  those  Highlands,  but  on  a  Highland,  or 
place,  which  does  not  divide,  from  each  other,  the  rivers  described  by  the 
treaty,  but  only  rivers  that  fall  into  one  and  the  same  river,  viz.,  the 
River  St.  John  ;  a  river  which,  as  the  United  States  assert,  falls  into 
the  Atlantic  Ocean,  but  is  considered  by  Great  Britain,  as  falling  neither 
into  the  Atlantic  Ocean,  nor  into  the  River  St.  Lawrence. 

The  boundary  between  the  two  countries  is  declared,  by  the  treaty  of 
1783,  to  be,  from  the  north-west  angle  of  Nova  Scotia  as  above  de- 
scribed, along  the  Highlands  which  divide  those  rivers  that  empty  them- 


; 


British  Line. 


81 


courseS) 
,  as  con- 

jlf,  to  be 
Britain ; 
lotes  the 
ccording 
he  boun- 
ed  on  the 
lat  extent 

imissiou- 

form  with 

cribed  by 

principal 

tended  for 
in  the  due 
River  St. 
which  that 

rivers  that 
River  St. 
direction, 
lelves  into 
ooscquick 
y  streams 
few  miles 

tie  north- 

brmed  by 

that  fall 

Atlantic 

ghland,  or 

)ed  by  the 

viz.,  the 

falls  into 

ng  neither 

e  treaty  of 
above  de- 
ipty  them- 


!  selves  into  the  River  St.  Lawrence  from  those  which  fall  into  the  At- 

lantic Ocean,  to  the  north-westernmost  head  of  Connecticut  River. 

From  that  source,  as  claimed  by  Great  Britain,  and  designated  on 
map  A  by  the  letter  C,  to  a  spot  called  Metjarmette  Portage,  which  di- 
vides the  source  of  the  north  western  most  branch  of  Penobscot  River, 
from  the  source  of  a  tributary  stream  of  the  River  Chandiere,  which  falls 
into  the  River  St.  Lawrence,  the  boundary  claimed  on  the  part  of  Great 
Britain,  denoted  by  the  red  line  on  map  A,  extends  along  the  Highlands 
which  divide  the  sources  of  several  rivers  that  fall  into  the  River  St. 
Lawrence,  from  the  sources  of  seveial  tributary  streams  of  the  Rivers 
Connecticut,  Kennebec,  and  Penobscot  which  fall  into  the  Atlantic 
Ocean.  It  is  only  for  that  portion  of  the  boundary,  or  about  eighty 
miles  in  a  straight  line,  that  the  British,  which  there  coincides  with  the 
American  line,  fulfils  the  conditions  of  the  treaty. 

From  Mars  Hill,  the  assumed  north-west  angle  of  Nova  Scotia,  the 
British  line,  till  it  reaches  the  nearest  or  north-easternmost  source  of  the 
Penobscot,  divides,  from  each  other,  no  other  rivers  than  some  tributary 
streams  of  one  and  the  same  river,  viz  :  the  St.  John.  And  thence  to 
the  source  of  the  River  Chandiere  at  the  said  Metjarmette  Portage,  it  di- 
vides no  other  rivers,  than  the  sources  of  the  tributary  streams  of  the 
Penobscot,  from  those  of  the  St.  John. 

From  Mars  Hill  to  the  sources  of  the  Chandiere,  the  British  line, 
through  the  whole  distance,  or  about  one  hundred  and  fifteen  miles  in  a 
straight  line,  instead  of  dividing,  in  conformity  with  the  express  and 
clear  words  of  the  treaty,  rivers  falling  into  the  River  St.  Lawrence  from 
rivers  falling  into  the  Atlantic,  divides  no  other  rivers,  than  rivers  falling 
into  the  Atlantic  Ocean,  from  rivers  falling  also  into  the  Atlantic  Ocean. 
Or,  according  to  the  suggestions  of  the  British  agents,  the  British  line 
for  the  whole  of  that  distance,  divides  no  other  rivers,  than  rivers  falling 
into  the  Bay  of  Fundy,  (S*.  John)  from  rivers  falling  into  the  Bay  of 
Fundy  and  the  Atlantic  Ocean.     (St.  John  and  Penobscot.) 

It  is  contended  by  Great  Britain,  that,  notwithstanding  the  boundary 
is  expressly  declared,  by  the  treaty,  to  extend  from  the  northwest  angle 
of  Nova  Scotia  to  the  north-westernmost  head  of  Connecticut  River, 
along  the  Highlands  which  divide  those  rivers  that  empty  themselves  into 
the  River  St.  Lawrence,  from  those  which  fall  into  the  Atlantic  Ocean ; 
and  although  these  words,  from,  along,  and  to,  are  the  clearest  and 
strongest  which  could  have  been  selected,  for  the  purpose  of  declaring, 
that  the  Boundary  thus  described  must,  through  its  whole  extent,  from 
its  beginning  to  its  termination,  be  along  the  said  Highlands  ;  yet  that 
clear  and  imperative  description  may  be  construed  to  mean ;  that  the 
line  may,  for  more  than  one  half  of  its  extent,  be  along  ground,  which 
is  acknowledged  not  to  divide  the  rivers  thus  described  by  the  treaty, 


3  •i 


t  li 
f.  i 


it'.'  'I 


99 


Tej'HW  of  the  Treaty 


':!  I 


but  to  divide  only  rivers  acknowledged  not  to  be  those  contemplated  and 
described  by  the  treaty. 

It  has  been  stated  that,  (independent  of  the  indispensible  condition, 
that  they  shall  divide  certain  rivers,  imposed  on  the  highlands  by  the  ex- 
press terms  of  the  treaty,)  it  is  contended  on  the  part  of  Great  Britain, 
that  the  term,  "  Highlands,"  also  implies  a  continuous  visible  elevation. 
The  first  condition  determines  the  position  of  the  highlands :  the  second 
may  be  called  their  character. 

Supposing  for  the  moment,  that  this  last  condition  is  essential ;  and 
admitting  that  the  British  line,  from  the  due  north  line  to  the  source  of 
the  Chandiere,  is  on  highlands  of  the  character  claimed  for  them  :  it  is 
nevertheless  undeniable,  that  the  highlands  thus  asserted  to  conform 
with  the  conditions  of  the  treaty,  do  not  in  position  conform  with  its  ex- 
press terms. 

The  assertion,  that  the  point  of  departure  may  be  placed  on  a  spot,  more 
than  one  hundred  miles  distant  from  that  expressly  prescribed  by  the 
treaty,  and  that  more  than  one  half  of  the  boundary  may  be,  on  highlands 
dividing  rivers  acknowledged  not  to  be  those  described  by  the  treaty,  had 
its  origin  in  the  unfortunate  choice  of  the  officers,  selected  on  the  part  of 
Great  Britain,  as  Agent  and  Commissioner,  in  conformity  with  the 
treaty  of  Ghent.  But,  that  the  British  Government  should  have  adopt- 
ed and  continue  to  sustain  a  pretended  interpretation,  so  obviously  con- 
tradictory of  the  express  terms  of  the  treaty,  is  wholly  incomprehensi- 
ble. 

The  inferences  drawn  from  some  general  expressions  in  the  pream* 
ble  of  the  treaty,  and  from  presumed  intentions  ascribed  to  the  negotia- 
tors, will  be  hereafter  adverted  to.  The  terms  of  the  treaty,  which  pre- 
scribe the  position  of  the  north-west  angle  of  Nova  Scotia  and  of  the 
highlands,  are  now  the  subject  of  discussion  :  and,  when  the  terms  are 
clear  and  explicit,  an  appeal  to  supposed  intentions  is  inadmissible. 

*  The  first  general  maxim  of  interpretation  is,  that  it  is  not  permit- 
ted to  interpret  what  has  no  need  of  interpretation.  When  an  act  is 
conceived  in  clear  and  precise  terms,  when  the  sense  is  manifest,  and 
leads  to  nothing  absurd,  there  can  be  no  reason  to  refuse  the  sense  which 
this  treaty  naturally  presents.  To  go  elsewhere  in  search  of  conjectures, 
in  order  to  restrain  or  extinguish  it,  is  t  j  endeavor  to  elude  it.  If  this 
dangerous  method  be  once  admitted,  there  is  no  act  which  it  will  not 
render  useless.  Let  the  brightest  light  shine  on  all  the  parts  of  the 
piece,  let  it  be  expressed  in  terms  the  most  clear  and  determinate,  all 
this  shall  be  of  no  use,  if  it  be  allowed  to  search  for  foreign  reasons  in 
order  to  maintain  what  cannot  be  found  in  the  sense  it  naturally  pre< 
sents."     (Vattel,  Book  2.  ch.  17,  §  263.) 


Briiiah  Line. 


n 


)lated  and 

condition, 
by  the  ex- 
it Britain, 
elevation. 
:he  second 

atial ;  and 
5  source  of 
hem :  it  is 

0  conform 
with  its  ex- 

i  spot,  more 
ibed  by  the 
a  highlands 

1  treaty,  had 
a  the  part  of 
ty  with  the 
have  adopt- 
viously  con- 
Dmprehensi- 

1  the  pream- 
the  negotia- 
,  which  pre- 
and  of  the 
le  terms  are 
lissible. 
not  permit- 
n  an  act  is 
anifest,  and 
sense  which 
conjectures, 
it.    If  this 
it  will  not 
[parts  of  the 
irminate,  all 
reasons  in 
laturally  pre- 


The  attempts  made  to  reconcile  the  British  claim  with  the  terms  of 
the  treaty  will  now  be  examined. 

The  British  Commissioner,  under  the  Ghent  commission,  says,  that 
the  treaty  directs  « that  the  due  North  line  shall  extend  to  the  highlands, 
evidently  meaning  the  ^trs^  highlands  corresponding  with  the  subsequent 
description,  at  which  that  line  should  arrive  ;  for  if  the  framers  of  the 
treaty  had  other  highlands  in  contemplation,  further  north,  they  would 
have  excluded  the  first  highlands,  by  an  express  exception  of  them." 
And,  in  the  first  British  statement,  Mars  Hill  is  said  to  be  with  pro- 
priety  claimed  by  Great  Britain,  as  the  point  of  departure  on  the  high- 
lands, amongst  other  reasons,  on  the  ground  of  that  point  being  the 
nearest  real  elevation  met  by  the  due  north  line. 

The  framers  of  the  treaty,  by  describing  the  highlands  as  dividing  the 
rivers  therein  designated,  did  exclude  all  other  highlands,  as  well  the 
first  highlands  which  the  due  north  line  might  meet,  as  any  other.  And 
the  suggestion  is  simply  to  substitute  the  words  <'  the  first  highlands, 
&c."  for  the  highlands  which  divide  rivers. 

The  United  States  insist  that  according  to  the  treaty,  the  boundary 
line,  through  its  whole  extent,  from  the  north-west  angle  of  Nova  Scotia, 
to  the  north-westernmost  head  of  Connecticut,  must  be  along  the  high- 
lands which  divide  the  rivers  designated  by  the  treaty. 

The  manner  in  which  the  British  agent,  under  the  Ghent  Commis- 
sion, attempted  to  evade  that  provision,  consisted  in  suggesting  various 
readings  of  the  text. 

1.  The  words  used  in  the  treaty,  viz  :  «  North  to  the  highlands"  are, 
he  says,  "  evidently  to  be  understood  as  intending  that  the  North  line 
should  terminate  whenever  it  reached  the  highlands,  which,  in  any  part 
of  their  extent,  divide  the  waters  mentioned  in  the  treaty." 

2.  What  he  calls  the  intention  of  the  treaty,  will,  he  says,  "  be  liter- 
ally effectuated,  by  a  very  small  variation  of  the  expression  actually 
made  use  of  in  this  regard,  namely,  by  describing  the  second  line  form- 
ing this  angle  in  the  following  words,  that  is  to  say ;  along  the  said  high- 
lands where  they  divide  those  rivers,  &c.  the  expression  actually  made 
use  of  is,  along  the  said  highlands  tohich  divide  those  rivers." 

3.  « The  true  intention  of  the  treaty would 

clearly  be  ascertained  by  the  following  obviously  plain  and  natural,  and 
nearly  literal,  construction  of  its  phraseology,  namely ; — It  is  hereby 
agreed  and  declared  that  the  following  are  and  shall  be  the  boundaries  of 
the  United  States,  viz  :  from  the  North-west  angle  of  Nova  Scotia,  viz  : 
that  angle  which  is  formed  by  a  line  drawn  due  North  from  the  source 
of  St.  Croix  River  to  the  line  q/*  the  highlands,  along  the  said  highlands 
which  divide,"  &c. 

4.  Finally  the  Agent  proposes  to  reverse  the  description  of  the  boun- 


ilii 


9  ^ 


ill 


I  I 


III 


l,^'!l 


%4 


Terma  of  the  Treaty. 


dary.  «  Let  then  the  tracing  of  the  boundary  in  this  quarter  be  made) 
from  the  north-westernmost  head  of  Connecticut  River,  along  the  high- 
lands which  divide  those  rivers,  &c.  to  the  north-west  Angle  of  Nova 
Scotia,  viz  :  that  angle  which  is  formed  by  aline  drawn  due  north  from 
the  source  of  St.  Croix  River  to  the  highlands." 

In  this  last  version,  the  British  Agent  has  not  interpolated  new  words, 
but  besides  reversing  the  line,  he  has  omitted  the  word  satti,  which  iden- 
tifies the  highlands  which  divide  the  rivers,  &c.  with  those  to  which  the 
due  North  line  is  declared  to  extend. 

It  is  not  necessary  to  inquire  whether  the  alterations  thus  suggested 
would  answer  the  purpose  for  which  they  are  intended.  They  have 
been  adverted  to,  only  to  show  the  various  attempts  of  the  British  Agent} 
all  of  which  consist  in  an  actual  alteration  of  the  expressions  of  the 
treaty. 

But  the  plea  principally  insisted  upon,  is,  that  the  highlands,  said  to 
extend  from  the  source  of  the  Chandiere  to  Ma's  Hill,  and  which  are 
claimed  on  the  part  of  Great  Britain  as  part  of  the  boundary,  although 
they  do  not  divide  the  rivers  described  and  contemplated  by  the  treaty, 
are  a  continuation  of,  or  connected  toith  those  highlands,  which,  from  the 
source  of  the  Chandiere  to  that  of  the  Connecticut,  are  acknowledged 
by  both  parties,  to  be  highlands  which  divide  the  rivers  contemplated 
and  prescribed  by  the  treaty. 

The  British  Commissioner,  under  the  Ghent  Commission,  describes 
the  boundary  claimed  on  the  part  of  Great  Britain,  as  a  line,  <*  running 
from  the  Connecticut,  along  the  highlands  acknowledged  by  both  par- 
ties ;  such  lino  being  continued  along  the  highlands  in  that  quarter,  in 
such  manner  as  to  leave  all  the  sources  of  the  Kennebec  and  Penobscot 
south  of  such  line  and  witliin  the  United  States,  to  Mars  Hill." 

And  he  adds  ;  "  Now  what  does  the  word,  ahmg,  in  its  ordinary  sig- 
nificatiou  import  \  certainly  a  continuation  of  those  highlands,  in  which 
continuation  will  be  found  highlands  which  divide  the  rivers,  &c. 

It  is  not  contended,  in  the  British  Statements,  that  the  words,  alongy 
and,  conlimiationf  are  synonymous.  The  terms,  "continuation,"  "  con- 
nection," "highlands  which  connect  themselves,"  are  indiscriminately 
used.  Any  direct  discussion  of  the  terms  of  the  treaty,  such  as  had 
been  hazarded  by  the  former  British  Commissioner,  is  avoided.  But  it 
is  throughout  affirmed,  that  it  is  not  necessary  according  to  the  terms  of 
the  treaty,  that  the  boundary  should,  through  its  whole  exteiit,  be  along 
Highlands  which  actually  divide  rivers  emptying  themselves  into  the 
River  St.  Lawrence,  from  those  that  fall  into  the  Atlantic  Ocean. 

In  describing  a  boundary  line,  there  are  three  requisites  ;  the  point 
at  which  it  begins,  that  at  which  it  terminates,  and  the  course  or  direc 
tion  which  it  follows  between  those  two  points.    The  most  appropriate 


m 


I 


British  Line. 


»$ 


be  made, 

the  high- 

of  Nova 

arth  from 

ew  words, 
hich  ideu- 
which  the 

suggested 
rhey  have 
ish  Ageut, 
DOS  of  the 

ds,  said  to 
which  are 
y,  although 
the  treaty, 
?h,  from  the 
mowledged 
mtemplated 

1,  describes 
«  running 

y  both  par. 
quarter,  in 
Penobscot 

• 

rdinary  sig- 
is,  in  which 

&c. 
ords,  along-, 
on,"  "  con- 
icriminately 
uch  as  had 
led.     But  it 

\e  terms  of 
it,  be  along 
es  into  the 
cean. 

the  point 
:se  or  direc- 

appropriate 


words,  those  in  most  common  use  for  that  purpose,  are, /rom,  lo,  and 
along,  or  by  :  from  the  point  at  which  the  line  begins  ;  to  the  point  at 
which  it  terminates ;  along  the  direction,  or  by  the  course  which  it 
follows. 

The  word /rom,  both  from  its  etymology  and  uniform  use  when  ap« 
plied  to  place,  is  that  which  most  precisely  designates  beginningy  and 
excludes  any  possible  interval,  between  the  point  to  which  it  refers,  and 
that  where  the  course  or  direction  assigned  to  the  line,  does  b^gin.  The 
word  along,  as  applied  to  such  course  or  direction,  means  the  whole 
length,  following  the  course  of,  keeping  company  withy  means  nothing 
else,  and  is  never  used  in  any  other  sense. 

The  treaty  having  declared  the  boundary,  from  the  North-west  Angle 
of  Nova  Scotia,  to  the  North-westernmost  head  of  Connecticut  River, 
to  be  along  the  highlands  which  divide  the  rivers,  &c.  that  boundary 
cannot,  without  a  direct  violation  of  the  express  terms  of  the  ^treaty, 
leave  the  said  highlands,  at  any  place,  or  for  any  distance,  between  that 
angle  and  that  head :  it  must,  through  its  whole  length,  between  those 
two  points,  keep  company  with  and  follow  the  course  of  those  highlands. 

What  precludes  any  cavil  respecting  the  obvious  meaning  of  those 
emphatic  words  iu  the  treaty,  is,  that  there  was,  iu  that  respect,  a  defect 
in  the  public  acts  of  Great  Britain,  from  which  the  description  of  the 
line  was  borrowed ;  and  that  that  defect  was  corrected  by  the  framers  of 
the  treaty,  who  placed,  in  most  explicit  terms,  the  beginning  and  the 
termination  of  the  boundary  line,  on  the  actual  dividing  highlands. 

According  to  the  Proclamation  of  1763,  the  line,  crossing  the  River 
St.  Lawrence  and  the  Lake  Champlain  in  forty-five  degrees  of  north 
latitude,  passes  along  the  highlands  which  divide  the  rivers  that  empty 
themselves  into  the  said  River  St.  Lawrence,  from  those  which  fall  into 
the  sea,  and  also  along  the  North  coast  of  the  Bay  des  Chaleurs,  &c. 

This  description  is  vague,  inasmuch  as  it  does  not  prescribe  the 
manner  in  which  the  line  is  to  pass,  either  from  the  forty<fifth  degree  of 
latitude  to  the  highlands,  or  from  the  highlands  to  the  North  Coast  of  the 
Bay  des  Chaleurs :  but,  though  defective  in  that  respect,  the  expres- 
sions used  in  the  Proclamation  do  not  contradict  the  description. 

The  subsequent  Act  of  Parliment  of  the  year  1774,  declared  the  Pro- 
vince of  Quebec  to  be  "  bounded  on  the  South,  by  a  line yrom  the  15ay  of 
Chaleurs,  along  the  highlands  which  divide  the  rivers  (last  above  men- 
tioned,) to  a  point  in  forty-five  degrees  of  Northern  latitude  ou  the 
Eastern  bank  of  the  River  Connecticut." 

This  description  was  not  merely  vague,  but  inaccurate.  The  same 
chasm,  as  in  the  Proclamation,  was  lefl  between  the  extremity  of  the  Bay 
of  Chaleurs  and  the  dividing  highlands  ;  and  there  was  besides  another, 
between  those  highlands  and  the  point  in  forty-five  degrees  of  Northern 

3 


11 


16 


Terms  of  the  Trealy. 


m 


■hi 


iiiiij  I 


11  i 


!:ii 


I! 


latitude  on  the  Eastern  bank  of  the  River  Connecticut.     The  use  of  the 
words yrom  and  to  was  therefore  inappropriate. 

Be*  the  framers  of  the  treaty  of  1763,  discussing  the  terms  of  an  in. 
ternatioual  compact,  with  the  avowed  view  that  all  disputes  which  might 
arise  in  future  on  the  subject  of  the  boundaries  might  be  prevented, 
corrected  the  defects  of  the  former  description,  and  used  no  expressions 
but  such  as  were  strictly  applicable  to  the  boundary  agreed  on,  and  de< 
scribed  in  the  treaty. 

The  manner  in  which  the  line  necessary  to  connect  the  dividing 
highlands  with  the  Bay  des  Chaleurs  ought  to  have  been  deftcribed,  was 
foreign  to  the  subject  matter  of  the  treaty ;  since  that  particular  portion 
of  the  southern  boundary  of  the  Province  of  Quebec  lay  far  east  of  the 
territories  of  the  United  States,  and  made  no  part  of  their  boundary  as 
agreed  on  by  the  treaty. 

The  point  from  which,  by  the  Quebec  Act,  the  line  along  the  highlands 
was  to  commence,  was  not  on  the  highlands  ;  and  the  word/rom  was 
therefore  inapplicable.  But  the  framera  of  the  treaty  placed,  in  the  most 
precise  and  express  terms,  the  point  at  which  the  line  along  the  high- 
lands was  to  commence,  that  is  to  say,  the  north-west  angle  of  ^ova 
Scotia,  on  the  actual  dividing  highlands  ;  and  to  that  point,  therefore, 
the  wordyrom  was  strictly  applicable,  and  the  appropriate  one  to  be  used 
on  ihe  occasion.  It  is  only,  in  case  they  had  not  thwfi  expressly  placed  the 
north-west  angle  of  Nova  Scotia,  or  place  of  beginning,  on  the  dividing 
highlands,  that  it  might  have  been  r.lleged,  that  the  words  from,  along, 
and  to,  did  not  imply  tbe  necessity  of  the  ooundary  tine  being,  through 
its  whole  extent,  along  the  highlands  which  divide  the  rivers  designated 
by  the  treaty. 

The  care  with  which,  whilst  adopting  the  point  in  forty-five  degrees 
north  latitude  on  the  bank  of  the  Connecticut  River,  the  framers  of  the 
treaty  corrected,  in  that  part  of  the  boundary,  the  defective  description 
of  the  Quebec  Act,  affords  the  most  conclusive  proof  of  the  deliberate 
attention  which  they  paid  to  the  subject,  and  that  the  words /rom,  along, 
and  to,  were  not  inadvertently  introduced ;  since,  fully  aware  of  their 
import,  the  negotiators  altered  the  description  of  the  boundary,  so  as  to 
make  it  exactly  correspond  with  the  true  and  only  appropriate  mean- 
ing of  those  words. 

The  correction  consisted  in  placing  the  termination  of  the  linQ  which 
extends  along  the  highlands,  at  that  point  where  the  boundary  must 
necessarily  leave  them,  that  is  to  say,  at  the  source  of  the  Connecticut 
River ;  and  in  describing  as  another  line,  that  which  from  that  source 
extends  "  down  along  the  middle  of  that  river  to  the  forty-fifth  degree  of 
north  latitude." 

Another  conclusive  proof  of  the  meaning  of  the  words  from,  along. 


Brititk  Line. 


27 


uie  of  the 

I  of  an  in. 
hich  might 
prevented, 
ixpreasiona 
n,  and  de- 

e  dividing 
cribed,  was 
liar  portion 
east  of  the 
loundary  as 

te  highlands 
d/roni  was 
in  the  most 
ig  the  high- 
Tie  of  Wova 
It,  therefore, 
e  to  be  need 
y  placed  the 
the  dividing 
'j'om,  alongi 
ing,  through 
designated 

five  degrees 
mers  of  the 

description 
\e  deliberate 
fromf  alongf 
tare  of  their 

ry,  so  as  to 
riate  mean- 

e  linQ  which 

indary  must 

Connecticut 

that  source 

th  degree  of 

from,  alongf 


and  to,  as  used  in  this  article  of  the  treaty,  with  reference  to  the  begin- 
ning, course,  and  termination  of  the  boundary,  is  found  in  the  subse- 
quent  parts  of  the  same  article,  in  which  they  are  used  for  the  same  pur- 
pose, and  in  the  same  express  sense,  not  less  than  eight  times,  viz  : 

"  To  the  north- western  most  head  of  Connecticut  River,  thence  down 
along  the  middle  of  that  river  to  the  fortli-fitlh  degree  of  north  latitude." 

'<  The  River  Iroquois,  or  Cataraquy  ;  thence  along  the  middle  of  said 
river  into  Lake  Ontario." 

"  The  communication  by  water  between  that  lake  and  Lake  Erie ; 
thence  along  the  middle  of  said  communication  into  Lake  Erie." 

"  The  water  communication  between  that  lake  and  Lake  Huron ; 
thence  along  the  middle  of  said  water  communication  into  the  Lake 
Huron." 

"The  River  Mississippi;  thence  by  aline  to  be  drawn  along  the 
middle  of  the  said  River  Mississippi,  until  it  shall  intersect  the 
northernmost  part  of  the  thirty-first  degre'i  of  north  latitude." 

"  The  River  Appalachicola  or  Catahouche  ;  thence  along  the  mid- 
dle thereof  to  its  junction  with  the  Flint  River." 

<*St  Mary's  River;  and  thence  down  along  the  middle  of  St.  Mary's 
River  to  the  Atlantic  Ocean." 

«  East,  by  a  line  to  be  drawn  along  the  middle  of  the  River  St.  Croix, 
Jrom  its  mouth  in  the  Bay  of  Fundy  to  its  source." 

In  this  last  instance,  the  words  from  and  along  are  used  ;  in  the  others, 
the  words  are  thence  and  along.  The  .node  cf  reasoning  generally 
adopted  by  the  British  Agents,  under  the  former  Ccmmission,  renders  it 
perhaps  necessary  to  observe,  that  the  word  thence,  as  applied  to  place, 
means/rotn  that  place,  from  that  point  i  and  that,  therefore,  the  words 
from  a  certain  point,  and  thence,  as  applied  to  a  point  just  before  men- 
tioned, are  synonymous. 

It  will  not  be  denied  that,  in  every  one  of  the  instances  which  have 
been  quoted,  the  boundary  line  was  to  extend  without  chasm  or  inter- 
ruption, from  the  point  of  departure,  along  the  defined  river  or  water 
communication,  to  some  other  specifi'^d  point  or  place.  Thus,  in  the 
last  instance,  the  line  does  begin  at  the  mouth  of  the  River  St.  Croix, 
and  from  that  point  extends  without  any  interruption,  along  the  middle 
of  the  said  river  to  its  source.  It  is  the  same  in  all  the  other  instances. 
And,  in  like  manner,  the  boundary  line  beginning  at  the  north-west 
angle  of  Nova  Scotia,  must,  according  to  the  treaty,  from  that  point  ex. 
tend  without  any  interruption,  along  the  highlands  which  divide  the 
rivers  designated  by  the  treaty,  to  the  north-westernmost  head  of  Con- 
necticut River.  To  deny  this  would  not  be  less  repugnant  to  common 
sense,  than  if  it  was  asserted  that  the  eastern  boundary,  instead  of  keep- 
ing, through  its  whole  extent,  from  the  mouth  of  the  River  St.  Croix,  to 


n 


F 


i« 


Term^  of  tki  Treaty. 


I  '. ,; 


its  sourc«,  along  the  middle  of  that  river,  might,  in  conformity  with 
the  treaty,  have  been  a  straight  ie,  from  the  mouth  of  the  river  to  the 
junction  of  its  north  and  west  branches. 

Another  attempt  to  reconcile  the  British  assumed  line,  with  the  terms 
of  the  treaty,  isfounued  on  a  glaring  perversion  of  the  meaning  of  the 
term  "  to  divide." 

The  British  commissioner  had  declared  it,  <Mo  be  evident,  that  the 
British  line  does  divide,  as  directed  in  and  by  both  those  treaties,  (that  of 
1783  aiid  that  of  Ghent,)  the  rivers  which  ernpty  themselves  into  the 
River  St.  Lawrence,  fro'  those  which  full  into  the  Atlantic  Ocean  ; 
thus  in  every  particulr.  satisfying  the  words  of  the  above  named  trea- 
ties," &c. 

It  is  contended  in  the  British  Statement:  "that  the  American  Stute- 
ment  has  given  to  the  Treaty  expreasion,  dividing  rivers,  a  narrowness 
of  signification  which  is  by  no  means  borne  out  by  the  wo'ds  them- 

selves :"....  "  and  that,  any  highlands 

rising  above  the  heads  of  one  set  of  the  rivers  to  be  so  separated  must 
necessarily  divide  those  rivers,  (the  Atlantic  rivers  west  of  the  St  Croix) 
from  the  other  set  of  rivers  named  in  the  treaty,  (those  falling  into  the 
River  St.  Lawrence,)  although  those  highlands  may  not  extend  equally 
along  the  sources  of  the  last  mentioned  rivers." 

No  attempt  is  made  to  prove  that  the  word,  "to  divide,"  is  suscepti- 
ble of  the  meaning  ascribed  to  it. 

But,  alluding  to  another  branch  of  the  discussion,  and  taking  it  for 
granted  that  the  River  St.  John  is  not,  >vithin  the  meaning  of  the  treaty, 
a*:  Atlantic  river,  the  Author  of  the  British  Statement  says  that,  had  not 
the  negotiators  intended  to  give  the  sense  he  accribes  to  the  words  "to 
divide,"  they  would  have  used,  when  speaking  of  the  rivers  to  be  divided,, 
a  I'nore  comprehensive  term  than  "Atlantic  Ocean  " 

Tow  the  use  of  that,  o\-  any  other  term,  in  order  to  designate  the  por- 
tion of  the  Sea  into  which  the  rivers  to  be  divide  '  empty  themselves, 
could  possibly  affect  the  meaning  of  the  word  "to  divide,"  it  is  i.npos- 
sibleto  divine.  Yet,  this  is  the  only  argument  adduced  in  proof  of  that 
singular  assertion. 

The  term  "<o  divide,"  according  to  the  British  mterpretation,  is  made 
synomymons  with  that  "  to  lie  between." 

Whatever  does  divide,  (or  separate)  must  be  contiguous  to  both  the 
things  which  are  to  be  divided,  (or  separated)  one  from  the  oilivi. 

A  line  can  divide  no  other  territories,  (or  surfaces,)  from  each  other, 
but  such  as  are  contiguous  one  to  the  other.  V  not  contiguous,  they  are 
divided,  not  by  a  line,  but  by  the  intervening  t«^rritury  (or  surface.) 

In  this  instance,  the  rivers  which  empty  themselves  into  the  River  St. 
Lawrence  are  divided  from  the  sources  of  the  upper  branches  of  the  Fe- 


Bfitish  Line. 


99 


nity  with 
ver  to  the 

the  termB 
ing  of  the 

I,  that  the 
js,  (that  of 
iS  into  the 
ic  Ocean ; 
imed  trea- 

ican  Stite- 
[larrowness 
j'ds  them- 
'  highlands 
arated  must 
a  St  Croix) 
ing  into  the 
cud  equally 

is  suscepti-. 

iking  it  for 

if  the  treaty, 

lat,  had  not 

words  "to 

be  divided,, 

lote  th«3  por- 

I  themselves, 

I  it  is  iiTipos- 

)roof  of  that 

Ion,  is  made 

|to  both  the 

3UIV1. 

each  other, 

bus,  they  are 

Lrface.) 

lie  River  St. 

Is  of  the  Pe- 


nobscot, Ist.  by  the  highlands  which  divide  the  first  mentioned  rivers 
from  the  Northern  tribui&ry  streams  of  the  St.  John  ;  2dly,  by  the  en- 
tire basin  of  the  River  St.  John  ;  <>rlly,  by  the  highlands  which  divide 
the  Southern  tributary  strean;.  of  this  river  from  the  upper  branches  of 
the  Penobscot. 

These  last  rientioned  Highlands,  which  are  these  claimed  by  Great 
Britain  as  the  boundary  line,  divide  no  other  rivers  from  each  other,  but 
those  of  the  Penobscot  and  of  the  St.  John.  They  divide  the  rivers 
that  fall  into  the  Atlantic  Ocean  from  those  which  e.apty  into  the  River 
St.  Lawrence,  in  the  same,  manner  precisely,  as  the  Thames  divides 
Surrey  from  Suffolk,  and  as  the  Rhine  divides  France  from  Poland. 

The  Pyrennees  are  sufficiently  mountainous  and  elevated,  and  they  di- 
vide Spain  from  France.  Can  they  bo  said  to  divide  Germany  from 
Spain  ? 

If  the  British  line  can  be  said  to  divide  the  waters  of  the  Penobscot 
from  those  of  the  St.  Lawrence,  and  if.  on  that  account,  Great'  Britain 
may  claim  the  intervening  territory ;  this  may  equally  be  claimed  by  the 
United  States,  since  their  line  divides  in  the  same  manner  the  waters 
of  the  St.  Lawrence  from  those  of  the  Penobscot.  The  pretended  in- 
terpretation of  the  term  "to  divide,"  leads  only  to  the  conclusion,  that 
the  negotiators  of  the  treaty,  instead  of  declaring  what  the  boundaries 
were,  led  the  whole  upper  basin  of  the  St.  John,  and,  as  will  hereafter  be 
shown,  left  it  knowingly,  u  subject  of  future  dispute  between  the  two 
Powers. 

It  will  be  shown  in  a  subsequent  section,  *iiat  the  term  "  Highlands 
which  divide  livers"  is  exclusively  applicable  to  the  ground  in  which 
those  rivers  hrve  their  sources. 

Another  assertion  in  the  British  statement  is  that,  because  one  of  the 
boundary  lines  (the  highlands,)  was  to  separate  the  sources  of  the  rivers 
to  be  divided,  it  f  Jlovcs  that  nono  of  those  rivers  can  according  to  the 
treaty  be  intersected  by  another  line  of  the  boundary,  (the  due  north 
line.)  Without  adverting  at  present  to  the  inferences  attempted  to  be 
drawn  from  that  supposition,  it  will  be  sufficient  here  to  observe:  that 
the  intention  of  that  clause  of  the  treaty  is  precisely  what  it  purports  to 
be,  viz.  that  the  boundary  line  should,  through  its  whole  extent  from  the 
north-v  est  angle  of  Nova  Scotia  to  the  head  of  Conneciicut  River,  divide 
from  each  other  the  rivers  that, empty  themselves  into  the  River  St.  Law- 
rence, from  those  which  fail  into  the  Atlantic  Ocean  ;  that  this  impera- 
tive clause,  thus  to  divide  the  said  rivers,  applies  exclusively  to  that  par. 
ticular  part  of  the  Boundary  thus  precit-'elj  defined  ;  that  it  does  not  pre- 
scribe, either  to  divide  or  not  to  divide  rivers,  with  respect  to  any  other 
portion  of  the  Boundary  be*  veen  the  two  Powers  ;  and  that  every  other 
portion  of  the  said  Boundary  is  defined  distinct'y,  and  must  be  under- 

•1* 


80 


Tenm  of  the  Treaty. 


iy 


II   Ij! 


i    : 


stood  as  thus  defined,  according  to  the  terms  in  which  each  such  portion 
is  respectively  described.  ^  J,   '..n*,, 

The  report  of  Messrs.  Featherstonhaugh  and  Mudge  will  be  examined 
in  another  place.  But  it  is  evident  that  the  line  of  highlands  which  they 
have  explored,  however  elevated  and  mountainous  it  may  be,  is,  in  po- 
sition, in  direct  opposition  to  the  terms  of  the  treaty.  It  appears  to 
commence  on  the  due  north  line,  south  of  the  Roostuc  River,  a  few 
miles  north  of  Mars  Hill,  and  to  terminate  at  the  highlands,  acknow- 
ledged by  both  parties,  a  few  miles  south  of  the  point  where  the  British 
line  according  to  the  map  A.  terminates.  The  point  of  departure  on 
tlie  north  line,  like  M<*rs  Hill,  can  divide  no  other watersthan  tributaries 
of  the  St.  John.  And  thence  to  its  termination  as  above  stated,  the 
boundary  line,  through  its  whole  extent,  divides,  in  the  same  manner  as 
the  British  line  on  the  map  A.  or  can  divide  no  other  rivers  than  those 
which  fall  into  the  River  St.  John,  from  those  which  fall  in  the  same 
river,  or  from  the  tributary  streams  of  the  Penobscot. 

The  same  observation  will  apply  to  every  other  point  on  the  due  nij  "^h 
line,  south  of  that  contended  for  by  the  United  States,  and  to  any  oth 
line  than  thai  which  they  claim. 

No  other  point  will  fulfil  the  conditions  prescribed  by  the  treaty,  viz : 
that  the  north  east  angle  of  the  United  States,  the  summit  of  which  is 
the  same  as  the  summit  of  the  north  west  angle  of  Nova  Scotia,  must 
be  on  the  highlands,  which  divide  those  rivers  that  empty  themselves 
into  the  Rive.  St.  Lawrence,  from  those  which  fall  into  the  Atlantic 
Ocean. 

Any  line,  drawn  from  "any  point  of  the  due  north  line,  other  than  the 
line  of  highlands  in  which  the  rivers  emptying  themselves  into  the  River 
St.  Lawrence  have  their  sources,  must  necessarily,  througl  its  whole 
extent,  to  the  highlands  acknowledged  by  both  parties,  pass  over  ground 
which  does  not  divide,  from  each  other,  those  rivers  which  by  the  treaty 
are  prescribed  to  be  divided.  Such  line,  as  will  appear  by  looking  at 
a;iy  map  of  the  ccuntry,  instead  of  dividing  or  separating  rivers,  must 
intersect  several  branches  of  the  St.  John,  and  the  St.  John  itself,  if  the 
line  commences  at  a  point  north  of  that  river.  Or,  if  it  does  divide  any 
rivers,  they  will  be  only  some  of  the  tributaries  of  tha  St.  John. 

If  the  objections  against  the  American  line  could  be  sustained,  the 
British  line,  as  well  as  any  line  other  than  that  claimed  by  the  United 
States,  would  still  be,  in  position,  inconsistent  with,  and  in  direct  oppo- 
sition to  the  express  terms  of  the  treaty.  Should  those  objections  pre- 
vail, the  only  legitimate  inference  would  be,  that  the  negotiators  of  the 
treaty  had  prescribed  a  boundary  line,  the  conditions  of  which  were  con- 
tradictory, and  therefore  that  the  treaty  could  not  be  executed. 

It  will  be  heieafter  demonstrated,  that,  with  respect  to  the  north-eastern 


i 


Highlands. 


81 


;h  portion 

examined 
which  they 
is,  in  po- 
appears  to 
ver,  a  few 
8,  acknow- 
the  British 
parture  on 
I  tributaries 
5  stated,  the 
manner  as 
than  those 
n  the  same 

,e  due  nil  '♦h 

)  any  oth 

treaty,  viz : 

of  which  is 

Scotia,  must 

themselves 

;he  Atlantic 

ler  than  the 
to  the  River 

its  whole 
over  ground 
)y  the  treaty 

looking  at 

rivers,  must 

itself,  if  the 

s  divide  any 

in. 

stained,  the 
the  United 
direct  oppo- 
ections  pre- 
ators  of  the 
h  were  con- 
d. 
lorth-eastern 


boundary,  the  negotiators  of  the  treat),  if  they  did  prescribe  such  contra- 
dictory conditions,  did  it  deliberately  and  knowingly. 


•1  "it: 


§  3. 
Signification  cf  the  expression  "  Highlands  which  divide  Rivers." 

It  has  already  been  observed,  that  the  term  <'  Highlands,"  used  alone, 
was  one  of  relative  import  and  indeterminate  signification:  that,  if 
thus  used  alone  in  the  treaty,  it  wo'dd  have  been  inapplicable  to  a  boun- 
dary ;  and  there  would  have  been  no  certain  criterion  by  which  to  as- 
certain what  were  the  highlands  intended. 

The  word  used  alone  has  been  applied  to  various  objects,  sometimes 
to  a  certain  district  of  country,  at  others  in  order  to  designate  some  par. 
ticular  spot,  always  relatively  to  some  other  district  or  object. 

The  highlands  of  Scotland  are  a  district  of  country  generally  moun- 
tainous, thus  called,  as  contradistinguished  from  the  southern  part  of 
Scotland,  known  by  the  name  of  Lowlands.  The  name  of  Highlands 
is  given,  in  New  York,  to  that  particular  portion  of  the  extensive  chain, 
known  in  Virginia  by  the  name  of  Blueridge,  through  which  the  tide 
water  has>  forced  its  passage  up  the  river  Hudson.  In  New  Jersey,  the 
Highlands  of  Neversink  are  apparently  insulated  hills  of  very  moderate 
elevation,  close  to  the  Sea  shore.  In  every  instance,  the  word,  is  used 
as  a  relative  teir.4  in  reference,  either  to  the  Lowlands,  to  the  River 
Hudson,  or  to  the  Sea. 

But  the  word  "  Highlands,"  is  never  used  in  the  treaty,  but  connect- 
ed with  the  words  "  which  divide  the  rivers,  &c."  And  it  is  according. 
'  cuntended,  on  the  part  of  the  United  States ;  that  the  property  of 
•  *'\  :t':s  the  rivets  designated  by  the  treaty,  is  that  which  affixes  to  that 
V.  ^  r!3'  a  a  definite  and  precise  meaning;  that,  united  with  that  ad- 
junct, '..lei  word  '<  Highlands"  was  judiciously  selected,  in  reference  to 
an  unexplored  country,  as  applicable  to  any  ground,  whatever  might  be 
its  nature  or  elevation,  along  which  the  line  dividing  the  rivers  should  be 
found  to  pass ;  and  that  the  fact,  that  the  ground  dividing  rivers  is  necessari- 
ly more  elevated  than  those  rivers  and  their  banks,  is  sufficient  to  entitle 
it  to  the  designation  of  "  Highlands,"  in  relation  to  those  riverii.  On 
the  other  hand,  Gr^at  Britain  maintains,  that  the  term  "  Highlands,"  em- 
nloyed  in  the  Treaty-  implies,  not  merely  lands  which  divide  rivers  flow. 
'  'g  iu  opposite  (directions,  but  high,  i.  e.  elevated  lands,  or,  in  other 
Words,  a  mountainous  trac*;  of  country  ;  that,  it  is  not  however  neces- 
sary, that  those  highlands  should  present  an  absolutely  unbroken  and 


32 


Terms  of  the  Treaty. 


ii! 


I|  I     iili 


i  111! 


continuous  ridge,  without  the  intervention  of  valley  or  swamp ;  but  that 
the  highlands  contemplated  by  the  treaty  ought  to  conform  to  the  above 
cited  definition  of  the  !erm,  by  displaying  a  generally  elevated  and 
mountainous  character. 

Such  a  character,  Great  Britain  affirms,  that  the  highlands  claimed  by 
her  do  in  reality  bear  ;  a  fact  which  may  be  admitted.  She  further  af- 
firms, that  not  one-third  of  the  American  line  can  be  shown  to  run  along 
any  lands  which,  according  to  her  definition  of  the  term,  are  entitled  to 
the  appellation  of  highlands ;  an  assertion  which,  the  line  not  having  been 
yet  surveyed,  is  neither  admitted  or  denied.  It  is  evident,  from  what 
precedes,  that,  on  the  part  of  the  United  States,  the  elevated  or  moun- 
tainous character  of  either  line  is  considered,  as  unimportant  and  irrel- 
evant to  the  questions  at  issue  between  the  two  Powers. 

It  is  true,  that  a  common  error  prevails  in  relation  to  that  subject,  viz : 
that  of  suppos'  ],  ^bat  highlands  which  divide  rivers  must  be  mountain- 
ous. 

Because  the  Alp^  /ide  the  rivers  of  Italy  from  those  of  Germany 
and  France ;  because  those  of  France  are  divided  from  those  of 
Spain  by  the  Pyrennees ;  because,  in  America,  the  Alleghany  moun- 
tains, for  an  extent  of  several  hundred  miles,  divide  the  sources  of  the 
rivers  which  fall  into  the  Gulf  of  Mexico,  from  those  of  the  rivers  which 
empty  themselves  into  the  main  Atlantic  Ocean ;  it  seems  to  have  been 
concluded  by  many,  whose  opinion  was  founded  only  on  an  erroneous 
analogy,  that  the  highlands  which  divide  the  rivers  which,  in  the  territory 
in  question,  flow  in  opposite  directions,  must  also  be  a  continuous 
chain  of  conspicuous  mountains,  soaring  above  all  the  adjacent  country. 
But  nature  is  not  so  uniform  in  her  works,  as  the  tendency  of  the  hu- 
man mind  to  generalize  would  make  her;  facts  will  overset  systems 
formed  before  those  had  been  ascertained ;  and  the  ridges  which  divide 
the  sources  of  the  River  St.  John,  from  the  tributary  streams  of  the 
River  St.  Lawrence,  as  those  which  separate  the  Volga  from  the  Neva, 
the  Niemen  and  the  Duna  from  the  Nieper,  though  they  may  not  have 
the  character  of  conspicuous  mountains,  are  not  the  less  embraced  by 
the  general  expression  of  <'  highlands  which  divide  those  rivers  respec- 
tively." 

If,  even  in  America,  where  the  term  <<  dividing  highlands"  is  general- 
ly used,  some  otherwise  well  informed  men,  such  as  Mr.  Sullivan,  were 
not  acquainted  with  its  technical  meaning ;  it  is  natural  that  it  should 
have  been  misunderstood  in  England,  where,  the  term  ''Highlands,"  as 
dividing  Rivers,  has,  it  is  believed,  never  been  used,  either  in  public 
documents  or  other  works,  except  in  reference  to  American  geography 
and  in  conformity  with  American  phraseology.  There  does  not  seem 
indeed  to  be  any  English  term  precisely  corresponding  with  that  of 


Highlanda. 


St 


>;  but  that 

the  above 

iTated  and 

claimed  by 
further  af- 
)  run  along 
I  entitled  to 
laving  been 
from  what 
]  or  moun- 
t  and  irrel- 

ubject,  viz : 
I  mountain- 

f  Germany 
n  those  of 
my  moun- 
jrces  of  the 
ivers  which 

0  have  been 

1  erroneous 
the  territory 
continuous 

ent  country, 
of  the  hu- 
set  systems 
hich  divide 
lams  of  the 
[J  the  Neva, 
iy  not  have 
nbraced  by 
irers  respec- 

is  general- 
livan,  were 
it  it  should 
hlands,"  as 
in  public 
geography 
s  not  seem 
vith  that  of 


■s 


"height  of  land,"  or,  "  highlands,"  as  used  in  Americain  reference  to  the 
division  of  waters.  It  is  not  known,  by  what  specific  appellation,  a  line 
running,  for  instance,  along  the  ground  which  divides  the  rivers  iu  £ng. 
land,  which  fall  into  the  Irish  Channel,  from  those  emptying  themselves 
into  the  North  Sea,  might  be  properly  designated  according  to  English  geo- 
graphical phraseology.  That  ground  would  certainly  be  called  in  Cana- 
da and  the  northern  part  of  the  United  States,  by  the  name  of  high- 
lands ;  in  the  middle  and  southern  states,  by  that  of  dividing  ridge. 
An  appellation,  to  which  that  ground  is  not,  on  account  of  its  elevation 
or  mountainous  character,  better  entitled,  than  that  which  the  United 
States  claim  as  their  north-eastern  boundary. 

There  is  however  an  equivalent  in  the  French  language.  The  word 
«  Versants,"  literally  "  Pourers,"  is  the  word  used  to  express  the  ground 
from  which  waters  flowing  in  opposite  directions  are  poured  ;  in  other 
words,  the  ground  in  which  those  waters  or  rivers  have  their  sources. 
The  principle  of  making  those  "  Yersants"  a  boundary  line  has,  it  is 
believed,  been  adopted  in  some  of  the  conventions  between  France  and 
both  Spain  and  Sardinia. 

A  single  and  obvious  consideration  is  conclusive  against  the  asser- 
tion, that,  under  the  treaty,  a  visible  elevation  and  a  generally  mountain- 
ous country  are  an  essential  character,  imposed  on  the  boundary  line  by 
the  term  "  highlands." 

The  supposition  of  two  contradictory  conditions  is  inadmissible  in 
&ny  definition.  The  essential  condition  of  dividing  rivers  is  imposed 
on  the  highlands  contemplated  by  the  treaty,  in  the  most  clear  and  ex- 
press terms,  and  is  undeniable.  No  implied  condition,  attempted  to  be 
inferred  from  a  supposed  meaning  of  the  indeterminate  word  "  high- 
lands," can  be  admitted,  if  it  is,  or  might  be  contradictory  of  the  first 
express  and  undeniable  condition.  The  nature  of  the  ground,  over 
which,  either  of  the  two  conflicting  British  and  Ametican  lines  respec- 
tively pass,  was  not  known,  even  so  late  as  the  year  1817,  when  the 
first  surveys  were  attempted  under  the  Ghent  Commission.  To  this 
day,  the  American  line  has  been  but  very  partially  examined.  In 
their  total  ignorance  of  the  nature  )f  that  ground,  it  was  impossible  for 
the  negotiators  of  the  treaty  of  1788  to  divine,  whether  a  line,  dividing 
the  rivers  speci6ed  by  the  treaty,  would  also  be  found  to  extend  along  a 
generally  mountainous  country.  And  since  it  v/as  not  known,  whether 
their  would,  or  would  not  be  the  case,  the  supposition  that  such  a  char- 
acter, (which  might  prove  contradictory  of  the  first  essential  and  ac- 
knowledged condition,)  is  attached  to  the  word  "  highlands,"  is  inadmis- 
sible. 

But  it  will  besides  be  now  demonstrated ;  that  the  terms  «  highlands 
which  divide  rivers,"  and  "  height  of  land"  are  synonymous ;  that  the 


ii!!:.p 


,!..!:;;:, 


m 


I 


S4 


Terma  oj  the  Treaty. 


term  "  height  of  land,"  and  occasionally  that  of  "  highlands,'*  is  used 
uniformly  to  designate  the  f^round  which  divides  rivers,  without  regard 
to  its  elevation  ;  and  that  the  same  term  always  designates  the  ground, 
in  which  the  rivers  thus  divided  actually  have  their  sources. 

The  first  position  is  undeniable. 

Governor  Pownall  says  :  "  the  Connecticut  River  rises  in  north  lati- 
tude 45<3  10',  at  the  height  of  the  land  in  longitude,  &c.  It  has  its  birth 
in  a  swampy  cove  at  the  height  of  the  land." 

Again ;  « a  range  running  hence  crosses  the  East  Boundary  line  of 
New  Hampshire  in  latitude  44^,  and  tending  north  east  from  the  height 
of  the  land  between  Kennebaeg  and  Chandiere  Rivers:  of  the  nature 
and  course  of  this  high  Land  in  these  parts  I  am  totally  uninformed." 

Again;  << all  the  Heads  of  Kennebaeg,  Penobskaeg,  and  Passam- 
aquoda  River  are,  on  the  Height  of  the  Land  running  east  north  east." 

Thus  both  the  highlands  contemplated  by  the  treaty,  and  acknow- 
ledged as  such  by  both  powers,  and  the  highlands  claimed  on  the  part 
of  Great  Britain,  as  being  also  contemplated  by  the  treaty,  are  designated 
by  Pownall,  by  the  appellation  of  Height  of  the  Land. 

The  Southern  boundary  of  the  Province  of  Quebec,  or  Lower  Cana- 
da, is,  iu  every  public  act  of  Great  Britain  which  designates  it,  describ- 
ed as  being  along  the  highlands  which  divide,  &c.  The  Committee  of 
the  Executive  Council  of  the  Province  of  Quebec,  in  their  report  of 
August,  1787,  speaking  of  that  boundary,  call  it  the  '*  height  of  land." 

Mr.  Bouchitte,  late  surveyor  general  of  Lower  Canada,  speaking  of  a 
chain  that  commences  upon  the  Eastern  branch  of  the  Connecticut  Ri- 
ver, takes  a  north-easterly  course,  &c.,  and  terminates  near  Cape  Rosi- 
er, calls  it  "  the  ridge  generally  denominated  the  land's  height,  dividing 
the  waters  that  fall  into  the  St.  Lawrence  from  those  taking  a  direction 
towards  the  Atlantic  Ocean.  In  his  large  map,  he  gives  the  name  of 
"  height  of  land"  not  only  to  the  acknowledged  highlands,  but  also  to 
those  in  the  vicinity  of  Lake  Temiscouata ;;  whilst,  in  his  topographical 
description,  (page  535,)  he  says  that  the  River  du  Loup,  which  has  its 
source  in  that  identical  height  of  land,  rises  in  the  highlands. 

Finally,  it  is  expressly  affirmed  in  the  British  statements,  that  "  the 
term  height  of  land  was  well  known  in  America,  and  frequently  used 
in  works,  with  which  the  Negotiators  of  the  Treaty  cannot  be  supposed 
to  have  beeu  unacquainted,  to  express  any  land  immediately  separating 
head  waters  falling  off  on  each  side  in  opposite  directions."  And  it  is 
likewise  positively  acknowledged,  that  "  the  distinctive  appellation  of  the 
**  height  of  land,"  was  given  to  the  highlands  acknowledged  by  both 
parties,  viz  :  those  "  dividing  the  waters  that  fall  into  the  Atlantic  Ocean, 
from  those  which  fall  into  the  River  St.  Lawrence  to  the  West  of  the 
flources  of  the  River  St.  John,  and  (of)  the  western  head  of  the  Fenob. 


I 


Highlands, 


W 


Is,"  is  used 
hout  regard 
the  ground, 


a  north  lati- 
has  its  birth 

idary  line  of 
n  the  height 
'  the  nature 
nformed." 
nd  Fassam- 
north  east." 
nd  acknow- 
l  on  the  part 
■e  designated 

Lower  Cana- 
Bs  it,  describ- 
i^ommittee  of 
leir  report  of 
it  of  land:* 
ipeaking  of  a 
inecticut  Ri- 
r  Cape  Rosi- 
ght,  dividing 
r  a  direction 
the  name  of 
9,  but  also  to 
;opographical 
hich  has  its 
Is. 

,ts,  that "  the 
quently  used 
be  supposed 
separating 
And  it  is 
llation  of  the 
Iged  by  both 
lantic  Ocean, 
est  of  the 
the  Fenob> 


scot."  Several  other  instances  will  be  given  of  the  two  terms  being 
used  as  synonymous,  as  we  proceed  to  show  the  signification  of  the 
term  "height  of  land." 

Governor  Pownall  says,  (page  10,)  "The  Hudson's  River  arises 
from  two  main  sources  derived  by  two  branches  whirh  meet  about  ten 
miles  above  Albany,  the  one  called  the  Mokawk's  River,  (rising  in  a 
jiat  level  tract  of  country,  at  the  very  top  or  height  of  the  land  to  west- 
ward,) comes  away  east  and  south-east  at  the  foot,  on  the  aorth  sides  of 
the  mountains,  which  the  Indians  call  by  a  name  signifying  the  endless 
mountains." 

In  this  instance,  the  appellation  of  the  «  height  of  the  land"  is  given, 
not  to  the  mountains,  the  basis  of  which  is  washed  by  the  river  in  its 
further  course  east  and  south-east  from  its  source,  but  to  the  very  spot 
in  which  the  Mohawk  River  takes  its  source,  and  which  divides  it  from 
the  sources  of  rivers  flowing  into  Lake  Ontario ;  and  that  height  of  the 
land  is  expressly  stated  to  be  "  aflat  level  tract  of  country." 

Again,  (page  13,)  "  Between  the  northern  part  of  the  Hudson's  River, 
and  the  southern  parts  of  the  Lakes  (6)  and  drowned  land,  is  the  height  of 
the  land  of  about  twelve  or  fourteen  miles  breadth,  whence  the  waters 
run  different  ways,  part  to  the  South,  part  to  the  north  ;  over  this  Port- 
age to  Lake  George  is  a  wagon  road. 

Across  this  very  height  of  land,  which  divides  the  waters  of  two 
mighty  rivers,  the  Hudson  and  the  St.  Lawrence,  the  Canal  has  now 
been  opened,  which  unites  Hudson's  river  with  Lake  Champlain,  the 
outlet  of  which  flows  into  the  River  St.  Lawrence  ;  and  that  height  of 
land,  the  summit  level  of  the  Canal,  the  point  de  partage,  is  only  147 
feet  above  the  level  of  tide  water,  as  will  be  seen  by  the  report  of  the 
Commissioners,  and  by  the  map  in  illustration  thereof. 

It  is  believed,  that  a  more  conclusive  proof  than  is  afforded  by  the 
two  last  quotations,  cannot  be  adduced,  that  the  appellation  of  «  height 
of  land"  is  given  only  in  reference  to  the  division  of  waters,  and  not 
in  the  least  to  the  character  and  elevation  of  the  ground. 

The  celebrated  British  traveller.  Sir  Alexander  McKenzie,  the  first 
who,  from  the  River  St.  Lawrence,  penetrated  through  the  Continent 
of  North  America,  both  to  the  Arctic  and  to  the  Pacific  Oceans,  has 
prefixed  to  the  account  of  his  voyages,  a  general  history  of  the  fur  trade 
from  Canada  to  the  North-west.  He  describes,  with  great  precision  and 
correctness,  the  route  pursued  by  the  traders,  from  the  junction  of  the 
Utawas  River  with  the  St.  Iiawrence,  near  Montreal,  to  the  waters  of 


(d)  Viz :  Lake  Champlain  and  Lake  George.  The  situation  of  the  drowned 
lands,  on  the  South  Bay  of  Lake  Champlain,  (where  the  Canal  terminates,)  may  be 
seen  in  Pownall'a  and  several  other  maps. 


86 


Terms  of  the  Treaty. 


liihii 


the  great  Arctic,  or  McKenzio's  River.  And  he  designates  the  various 
dividing  grounds  traversed  on  that  long  voyage,  in  the  following  man> 
ner: 

Speaking  of  the  Portage,  from  the  source  of  the  Petite  Reviere,  a  tri- 
butary of  the  Utawas  River,  to  the  waters  of  the  French  River,  which 
empties  into  Lake  Huron,  he  says,  "  The  last  (Portage)  in  this  river 
(Petite  Riviere)  is  the  Turtle  Portage,  eighty-three  paces,  on  entering 
the  lake  of  that  name,  where,  indeed,  the  river  may  be  said  to  take  its 
source.  From  the  first  vase  to  the  great  River,  the  country  has  the  ap- 
pearance  of  having  been  overrun  by  fire,  and  consists,  in  general,  of  huge 
rocky  hills,  The  distance  of  this  portage,  which  is  the  height  of  land 
between  the  waters  of  the  St.  Lawrence  and  the  Utawas,  is  1613  paces 
to  a  small  Canal  in  a  plain,  that  is  just  sufficient  to  carry  the  loaded  ca- 
noe about  one  mile  to  the  next  vase,  which  is  726  paces." 

Alexander  Henry,  an  earlier  traveller,  who  passed  over  the  same  divid- 
ing ground  in  the  year  1761,  gives  it  the  same  appellation.  *<  We  had 
now  passed  the  country,  of  which  the  streams  fall  North-eastward  into 
the  Outawais,  and  entered  that  from  which  they  flow,  in  a  contrary  direction 
towards  Lake  Huron.  On  one  side  of  the  height  of  land,  which  is  the 
reciprocal  boundary  of  these  regions,  we  had  lefl  Lake  aux  Tourtes  and 
the  River  Matawa,  and  before  us,  on  the  other,  was  Lake  Nipisingue. 

McKenzie,  speaking  of  Lake  Superior,  says,  '<  This  Lake  may  be 
denominated  the  crand  reservoir  of  the  River  St.  Lawrence,  as  no  con- 
siderable rivers  discharge  themselves  into  it.    .     • 

.  .  Indeed,  the  extent  of  country  from  which  any  of  them  flow, 
or  take  their  course  in  any  direction,  cannot  admit  of  it,  in  consequence 
of  the  tidge  of  land  tliat  separates  them  from  the  rivers  that  empty  them- 
selves  into  Hudson's  Bay,  the  Gulf  of  Mexico,  and  the  waters  that  fall 
in  Lake  Michigan." 

Henry,  navigating  along  the  northern  shore  of  Lake  Superior  in  the 
year  1776,  says,  "  In  the  evening  we  encamped  at  the  mouth  of  the 
Pitijic,  a  river  as  large  as  that  of  Michipicoten,  and  which  in  like  man- 
ner takes  its  rise  in  the  high  lands  lying  between  Lake  Superior  and 
Hudson's  Bay.  From  Michipicoten  to  the  Pitijic,  the  coast  of  the  lake 
is  mountainous :  the  mountains  are  covered  with  pine,  and  the  valleys 
with  spruce  fir." 

It  will  be  observed,  that  the  dividing  ground  which  separates  the  rivers 
that  fall  into  Lake  Superior,  from  those  that  empty  themselves  into  Hud- 
son's Bay,  which  McKenzie  calls  the  ridge  of  land,  is  by  Henry  desig- 
nated by  the  name  of  high  lands ;  and  that  this  last  writer,  reserving  that 
term  for  the  dividing  ground,  gives  the  name  of  mountains  to  the  coast 
of  the  lake. 

McKenzie,  afler  having  described  the  route  from  the  shores  of  Lake 


Highlands. 


87 


the  varioua 
wing  man- 

viere,  a  tri- 
.iver,  which 
I  this  river 
>n  entering 
to  take  its 
has  the  ap- 
eral,ofhuge 
ight  of  land 
I  1513  paces 
te  loaded  ca- 

!  same  divid- 
,     «  We  had 
astward  into 
rary  direction 
which  is  the 
Tourtes  and 
Nipisingue. 
lake  may  be 
e,  as  no  con- 
I     •     •     • 

them  flow, 
consequence 

empty  them- 
aters  that  fall 

iperior  in  the 

nouth  of  the 

in  like  man. 

Superior  and 

t  of  the  lake 

1  the  valleys 

tes  the  rivers 

^es  into  Hud< 

~  [enry  desig- 

reserving  that 

to  the  coast 

jres  of  Lake 


1> 
11 


Superior,  about  forty  miles  to  the  north-west,  says,  "  From  hence  the 
course  is  on  the  lake  of  the  same  name,  ( Perche)  west-south-west  three 
miles  to  the  height  of  land  where  the  waters  of  the  Dove  or  Pigeon 
River  terminate,  and  which  is  one  of  the  sources  of  the  great  St.  Law- 
rence in  this  direction.  Having  carried  the  canoe  and  lading  over  it 
679  paces,  they  embark  on  the  lake  of  Hauteur  de  Terre,  which  is  in 
the  shape  of  a  horse.shoe.  It  is  entered  near  the  curve,  and  left  at 
the  extremity  of  the  western  limb,  through  a  very  narrow  channel, 
where  the  canoe  passes  half  loaded  for  30  paces  with  the  current,  which 
conducts  these  waters  till  they  discharge  themselves  through  the  succeed- 
ing lakes  and  rivers,  and  disembogues  itself,  by  the  River  Nelson,  into 
Hudson's  Bay." 

Henry,  speaking  of  the  same  dividing  ground  which  he  describes  as 
a  chain  of  lakes,  says,  '<  The  region  of  the  lakes  is  called  the  Hauteur 
de  Terre,  or  land^s  height" 

Describing  the  rivers  that  empty  themselves  into  Lake  Winipic,  Mc- 
Kenzie  says,  .'<  those  on  the  north  side  are  inconsiderable,  owing  to  the 
comparative  vicinity  of  the  high  land  that  separates  the  waters  coming 
this  way  from  those  discharging  into  Hudson's  Bay." 

Here  McKenzie  designates  the  dividing  ground  by  the  name  of  high 
land.  Sometimes  he  calls  it  a  ridge  ;  when  he  speaks  afterwards  nf  the 
two  places  which  divide  the  waters  of  the  River  Missinipi  from  those 
of  Lake  Winipic,  and  of  McKenzie's  River  respectively,  he  uses,  as 
synonymous,  the  word por/ao^e,  (in  English,  carriage  ;)  which  last  desig- 
nation is  more  particularly  applied  to  the  route  or  path  across  the  height 
of  land,  along  which  the  canoes  are  carried  from  water  to  water.  But 
he  never  uses  the  term  height  of  land  itself,  except  for  the  purpose  of 
designating  the  ground  which  does  divide  the  rivers. 

Mr.  Bouchette,  besides  other  instances,  mentions  <'  another  and  high- 
er range  of  mountains  that  forms  the  land^s  height,  and  divides  the 
waters  that  empty  themselves  into  the  St.  Lawrence,  from  those  that 
descend  into  Hudson's  Bay." 

And,  in  another  place,  (page  36,)  he'says,  "  Between  it  (Lake  Micni. 
gan)  and  Lake  Huron,  there  is  a  peninsula  that,  at  the  widest  part,  is  150 
miles,  along  which,  and  rouud  the  bottom  of  Michigan,  runs  part  of  the 
chain  forming  the  land's  height  to  the  southward  ;  from  whence  descend 
many  large  and  numerous  inferior  streams  that  discharge  into  it.  On 
the  north  side  of  Lake  Huron,  many  rivers  of  considerable  size  run 
from  the  Zand's  height  down  to  it.  One  of  them,  called  French  River, 
communicates  with  Lake  Nipissing." 

This  last  land's  height  is  the  same  mentioned  by  McKenzie  and 
Henry,  as  dividing  the  waters  of  the  Utawas  River  from  those  of  Lake 
Huron.     That  to  the  southward  of  Lake  Michigan,  is  that  which  divides 

4 


If? 


F 


i'i 


' 


m 


Wfi. 

If: 


i 


1 


r:r 


38 


Temu  of  the  Treaty. 


its  waters  from  those  of  the  Illinois  River,  a  tributary  of  the  Mississlp' 
pi ;  and  this  1011(1*8  height  is  a  swamp,  and  at  one  place  a  pond,  which, 
when  swelled  by  rains,  discharges  its  waters  both  ways,  so  as  that  a  canoe 
may  then  pass,  without  being  carried  across,  from  Lake  Michigan  into 
the  Illinois  River. 

It  had  already  been  shown,  that  the  term  "  highlands,"  taken  in  a 
general  and  indeterminate  sense,  was  well  adapted  to  the  purpose  of 
designating,  in  the  most  general  manner,  the  nexplored  ground  divid- 
ing certain  specified  rivers,  along  which  the  boundary  line  described  in 
the  treaty  was  intended  to  pass. 

It  has  now  been  conclusively  proved  that,  independent  of  its  general 
sense,  the  word  "  highlands"  is,  in  common,  and  as  synonymous  with 
^*  height  of  land,"  a  term  in  general  use  in  Canada,  and  in  New  Eng- 
land, for  the  purpose  of  designating,  without  any  reference  to  its  eleva- 
tion or  nature,  any  species  of  ground  which  divides  rivers  flowing  in 
different  directions,  and  the  ground  in  which  those  rivers  actually  have 
their  sources.  And  it  has  been  also  incontestably  proved,  that  the 
designation  of  "height  of  land,"  (respecting  the  use  of  which  for  that 
purpose  exclusively,  there  can  be  no  doubt,)  has  been  and  is  perpetually 
applied  to  the  ^ery  highlands,  which  are  by  both  parties  acknowledged 
to  be  part  of  those  described  and  intended  by  the  treaty. 

The  appropriate  use  of  that  term,  in  the  treaty,  is  therefore  in  every 
respect  indisputable.  And  it  must  also  be  recollected,  that  it  was  borrowed 
from  the  proclamation  of  1763,  and  other  public  acts  of  Great  Britain ; 
that  the  particular  use  of  the  term  in  that  sense  is  of  Canadian  origin  ; 
and  that  it  was  for  the  first  time  used,  and  has  been  retained  in  subse- 
quent public  British  acts,  for  the  express  and  sole  purpose  of  defining 
the  boundary  of  Canada. 

It  is  not  unimportant  to  observe  here,  that  the  dividing  highlands, .  > 
knowledged  as  such  by  both  parties,  do  not  appear  to  have  every  where 
that  mountainous  character  which  is  required  according  to  the  British 
definition. 

The  Metjarmette  Portage,  which  is  common  to  the  two  conflicting 
lines,  is  of  a  similar  character  with  those  of  the  River  Quelle  and  of 
the  Aliguash.  The  sources  of  the  Metjarmette,  of  the  Penobscot,  and 
of  the  St.  John,  rise  close  to  each  other  in  the  same  swamp.  The  ac- 
knowledged highlands,  for  an  extent  of  ten  miles  in  a  southerly  direc- 
tion from  that  Portage,  are  designated  in  Mr.  Campbell's  sketch  as  "low 
land."  And  the  British  Surveyor,  Mr.  Carlile,  speaking  of  the  height 
of  land  between  the  River  Connecticut  and  the  sources  of  the  St.  Fran- 
cis, which  is  a  tributary  of  the  River  St.  Lawrence,  says,  that  its  sources 
are  found  in  the  same  swampy  ground,  and  a  few  reus  from  those  of 
Indian  and  Hall's  Streams,  which  empty  themselves  into  the  lliver  Con- 
necticut. 


'i 


Jtllantic  Ocean. 


8f 


MissiBsip- 
ind,  whichy 
tiat  a  canoe 
:higaD  into 

aken  in  a 
purpose  of 
tund  divid- 
lescribed  in 

its  general 
lymous  with 

New  Eng- 
[o  its  eleva- 
I  flowing  in 
ctually  have 
ed,  that  the 
ich  for  that 

perpetually 
;knowledged 


ore  in  every 
tras  borrowed 
eat  Britain ; 
dian  origin  ; 
ed  in  subse- 
of  defining 

ighlands, .  > 
every  where 
the  British 

conflicting 
uelle  and  of 

obscot,  and 
ip.  The  ac- 
therly  direc- 
etch  as  "  low 
>f  the  height 
he  St.  Fran- 
at  its  sources 

m  those  of 
!  lliver  Con- 


§4. 

The  term  "  Atlantic  Ocean "   how  far  contradistinguished  from  tha 
Bay  of  Fundy,  and  from  the  Gulf  of  St.  Lawrence. 

The  principal  objection,  on  the  part  of  Great  Britain,  to  the  boun- 
dary line  claimed  by  the  United  States,  is  stated  in  the  following  wordS| 
in  the  first  British  Statement. 

"  The  first  point  to  be  considered  in  treating  this  question  is,  whether 
the  term  Atlantic  Ocean,  as  used  in  this  part  of  the  second  article  of  the 
treaty  of  1783,  is  not  coutradistinguished  from  the  terra  Bay  of  Fundy. 
This  is  the  cardinal  point  of  the  whole  of  this  branch  of  difference  (the 
north-eastern  boundary)  between  Great  Britain  and  the  United  States. 
With  respect  to  that  point,  then,  Great  Britain  maintains,  that  through- 
out the  whole  treaty  of  17S3,  it  is  demonstrable  by  the  letter  of  the 
treaty,  as  well  as  by  collateral  and  inductive  evidence,  that  the  term 
*<  Bay  of  Fundy "  is  used  as  totally  separate  and  distinct  from  the 
term  "  Atlantic  Ocean ;"  and  therefore,  on  this,  as  well  as  other  sepa- 
rate and  peculiar  grounds,  that  the  River  St.  John  which  falls  into  the 
Bay  of  Fundy  is  taken  as  distinct  from  those  rivers  which  are  described 
in  the  treaty  as  falling  into  the  Atlantic  Ocean." 

The  objection  is,  in  substance,  sustained  on  the  following  grounds  : 

1.  That  the  term  Atlantic  Ocean  is  in  itself  a  limited  appellation,  not 
including  bays  and  gulfs,  generally  known  by  specific  designations, 
(with  the  exception,  however,  of  such  bays  as  are  merely  expansions  of 
the  mouth  of  rivers  ;)  and  that,  as  respects  the  rivers  to  be  divided,  the 
limitatioQ  of  the  term  Atlantic  Ocean  is  farther  established,  by  its  having 
been  substituted  in  the  treaty,  for  the  more  comprehensive  expression 
Sea,  which  had  been  used  in  the  proclamation  of  1763. 

2.  And  principally  :  that  the  term  "  Atlantic  Ocean,"  even  if  under- 
stood in  a  more  extensive  sense,  when  used  alone,  is  so  limited  and 
restrained,  by  that  ocean  being  expressly  contradistinguished  in  a  clause  of 
the  treaty  from  the  Bay  of  Fundy  ;  that  this  bay  must,  throughout  the 
whole  treaty,  necessarily  be  taken  as  distinct  from  that  Ocean  ;  and  that  the 
rivers,  particularly  the  St.  John,  emptying  themselves  into  the  said  bay, 
(or  into  the  Gulf  of  St.'  Lawrence,)  are  not,  within  the  meaning  of  the 
treaty,  rivers  that  fall  into  the  Atlantic  Ocean. 

3.  That  this  position  is  confirmed  by  other  considerations,  principal- 
ly drawn  from  the  intentions  of  the  negotiators  of  the  treaty. 

The  meaning  of  the  term  Atlantic  Ocean,  when  used  alone,  will  be 
first  examintd. 
"  Sea,"  in  Us  general  sense,  embraces  the  whole  body  of  salt  waters 


m 


:!':i  I 


40 


Term$  of  the  Treaty. 


on  the  globo.  Some  of  its  parta  in  Europe  and  Asia,  have,  from  an. 
cient  and  universal  usage,  preserved  the  name  of  sea,  such  as  the  Medi- 
terranean, the  Baltic,  &c. ;  but,  as  a  whole,  its  great  subdivisions  are 
uniformly  designated  by  the  names  of  Atlantic,  PaciHc,  Indian,  Arctic, 
Antarctic  Ocean  ;  and  each  of  these  is  a  generic  appellation,  embracing, 
when  not  specially  or  impliedly  excluded,  all  the  bays,  gnlfs,  and  inlets, 
which  are  only  portions  of  such  ocean,  and  formed  by  the  indentures  of 
the  shores  to  which  it  does  extend,  or  by  adjacent  islands. 

The  northern  Atlantic  Ocean  extends  from  the  European  shores  to 
Uiose  of  North  America.  In  its  general  sense,  it  embraces  all  the 
bays,  gulfs,  and  inlets,  though  distinguished  by  distinct  names,  which 
are  formed  by  the  shores  of  Europe  and  North  America.  This  is  too 
generally  admitted  in  geography  to  be  denied. 

The  Germriu,  or  North  Sea  '<  may  be  regarded  as  apart  of  the  Atlan- 
tic Ocean,  terminating  at  the  straits  of  Dover ;  whence  the  British 
channel  extends  to  the  west.  The  bay  of  Biscay  is  another  large  inlet 
of  the  Atlantic."    (Pinkerton's  Geography.) 

(<  Scotland  ia  bounded  on  the  south  by  England,  and  on  the  north, 
east,  and  west,  by  the  Deucaledonian,  German,  and  Irish  seas,  or  more 
properly,  the  Atlantic  Ocean."     (Guthrie's  Geog.) 

The  Atlantic  Ocean,  in  the  last  instance  is  declared  to  embrace  the 
Irish  channel,  and  in  both  instances,  it  embraces  the  German  sea,  al- 
though there  is  no  portion  of  the  said  Ocean  more  usually  designated  by 
its  distinct  appellation,  than  the  German  or  North  Sea. 

M alte.Brun,  in  his  geography,  subdivides  the  Seas  adjacent  to  the 
American  Shores,  into  five  portions  or  basins,  viz : 

1.  Great  or  Pacific  Ocean. 

2.  Unknown  or  Arctic  Ocean. 

3.  Hudsons  Bay. 

4.  North  Atlantic  Ocean  ;  in  which  he  includes  by  name  the  river 
(and  therefore  the  Gulf)  St.  Lawrence.  And,  as  dependencies  of  the 
said  Atlantic,  he  enumerates  the  Gulf  of  Mexico,  and  the  Sea  of  An- 
tilles. 

5.  South  Atlantic  Ocean. 

It  has  never  been  disputed  that,  in  their  general  geographical  accep- 
tation, the  great  divisions  of  the  Sea  embrace  their  subordinate  subdivi- 
sions, nor  that  those  subdivisions,  including  all  inlets,  bays  and  gulfs,, 
are  known  by  specific  names.  It  cannot  be  denied,  that,  according  to 
every  rule  of  language,  the  generic  term,  when  used  alone,  must  be  un- 
derstood to  embrace  the  subordinate  subdivisions  of  the  Sea  or  Ocean,, 
known  by  that  term ;  and  that,  when  a  specific  name  is  used,  it  applies 
exclusively  to  the  particular  inlet,  gulf  or  bay,  designated  by  that  name< 
When  thus  used  apart  from  each  other,  there  is  neither  confusion  nor 


Atlantic  Ocean. 


4: 


name^ 
on  nor 


difficulty.  The  generic  term  embraces,  the  specific  name  designates 
the  su./ordinate  inleta  :  each  is  used  with  propriety  as  the  occasion  may 
require. 

When  the  generic  term  Atlantic  Ocean,  and  the  distinct  name  of  one 
of  its  inlets,  are  used  in  the  same  sentence,  as  contradistinguished  from 
each  other,  the  signification  of  the  general  term  is  thereby  restrained ; 
and  it  must  be  so  understood  cs  to  exclude  the  inlet  th*.:s  distinctly  de- 
signated. 

Thus,  in  the  description  of  the  boundary  of  East  Florida,  as  defined 
by  the  proclamation  of  1763,  the  signification  of  the  term  Atlantic  Ocean 
is  restrained,  so  as  to  exclude  the  Gulf  of  Mexico  and  what  is  there 
called  the  Gulf  of  Florida 

In  that  clause  of  the  treaty,  however,  which  specifies  the  rivers  to  be 
divided,  and  which  is  at  this  moment  alone  under  consideration,  the  term 
"Atlantic  Ocean"  is  not  contradistinguished  from,  or  united  with,  either 
of  those,  "  Bay  of  Fundy"  or  '<  Gulf  of  St.  Lawrence."  It  must  neces* 
sarily,  in  its  usual  acceptation,  and  as  the  generic  term,  be  understood 
there  as  including  both  those  inlets,  unless  it  can  be  shown  that,  as  \e 
true  with  respect  to  some  of  its  other  geographical  subdivisions,  the  term 
<<  Atlantic  Ocean,"  when  used  alone,  has  been  usually  understood  as  ex- 
cluding those  two  inlets.  The  acceptation  of  terms,  as  generally  use**, 
in  common  language,  is  a  proper  guide  in  the  interpretation  of  treaties; 
and  there  are  several  European  seas,  which,  though  embraced  by  the 
geographical  definition,  are  commonly  considered  as  not  included  within 
the  term  "Atlantic  Ocean." 

The  Mediterranean  and  Black  Seas  were  the  first  known  to  the 
ancient  civilized  nations  ;  they  were  therefore  the  first  which  received 
special  appellations  :  and  that  of  Mediterranean  has  been  used  from  the 
earliest  times  to  distinguish  the  sea,  still  known  by  that  name,  from  the 
sea  without  the  straits,  at  first  called  Ocean,  and  now  Atlantic  Ocean. 
By  a  parity  of  reasoning,  the  Baltic,  being  a  close  sea,  was'  from  its 
first  discovery  considered  under  that  name,  as  distinct  from  the  ocean. 

Long  usage  has  consecrated  those  expressions  ;  and  it  will  therefore 
be  admitted,  that  although  geographers,  in  their  great  divisions  of  the 
Ocean,  consider  those  several  seas  as  parts  of  the  Atlantic  Ocean,  they 
are  generally,  in  common  language,  taken  as  distinct ;  so  as  to  render 
it  doubtful  whether  the  term  "  Atlantic  Ocean,"  used  by  itself  in  a  pub- 
lic docume  't,  could  be  properly  understood  to  include  those  inland  seas. 
But  it  ma  be  confidently  usserted,  that  in  common  language,  as  well 
as  in  its  geographical  acceptation,  the  term  •'  Atlantic  Ocean,"  when 
used  alone,  and  its  meaning  is  not  restrained  by  some  other  expressions, 
has  ever  been  held  to  embrace  all  the  inlets,  bays,  and  gulfs  of  the  Ameri- 


4* 


48 


Ter.M  oj  the  Treaty. 


I  ' 


I  ill,. 


can  coast;  or,  that  if  there  haa  ever  l^eeu  auj  exception,  it  is  solely 
that  of  the  Gulf  of  Mexico. 

Thus  Governor  Pownall,  when  speaking  generally  of  the  Athntic 
Ocean,  considers  it  as  embracing  even  the  Gulf  of  Mexico.  "  We 
know  from  observation  how  much  higher  the  Atlantic  Cccan  is  than  the 
PaciHc ;  and  how  t7  is  piled  xip  against  the  American  coast  on  the  nest' 
ernsho-ie  of  the  Gulf  of  Mexico,  driven  thither  by  the  trade  winds,"  &c 

It  is  declared,  in  the  Proclamation  of  1763,  to  be  the  royal  will,  that 
no  Governor,  or,  Commander  in  Chief  of  our  other  colonic 3  or  plan- 
idtions  in  America,  do  presume,  for  the  present,  and  until  our  further 
pleasure  be  known,  to  grant  any  warrant  of  survey  or  pass  patents,  for 
any  lands  beyond  the  head  or  sources  of  any  of  the  rivers  which  fall 
into  the  Atlantic  Ocean  from  the  west  or  north-west." 

Those  other  colonies,  lying  between  those  of  Quebec  and  £ust  Flori' 
da,  extended  along  that  line  of  demarcation  beyond  which  <t  was  forbid- 
tien  to  grant  lands,  from  the  north-easternmost  so'ir^^es  (f  the  River 
Susquehanna  which  lie  north  of  the  42d  degree,  to  those  of  the  Altama- 
Vta  River  in  33  degrees  of  uorth  latitude. 

The  space  occupied  along  that  line  by  the  sources  of  the  Susquehan- 
na, Potomac,  James  River  and  Roanoke,  and  their  tributary  streams,  in 
more  than  one  half  of  the  whole  extent  of  ihe  line.  And  of  those  four 
rivers,  the  three  firsi  named  empty  themselves  into  the  Atlantic  Ocean, 
through  the  bay  of  Chesapeake ;  and  the  last,  throu^rh  an  inland  bay, 
known  by  the  name  of  Albemarle  Sound,  which  has  no  communica- 
tion with  the  Sea,  but  through  three  narrow  and  shallow  passes.  li  can- 
not therefore  be  doubted  that  in  this  instance  ;  by  rivers  which  fall  into 
the  Atlantic  Ocean,  those  are  meant  which  fall  in'to  its  bayfi  or  inlets,  a£ 
well  as  tho^e  which  fall  directly  into  the  main  Ocean. 

In  the  case  under  consideration,  not  only  is  the  generir  aDpellatJon  of 
*'  Atlantic  Ocean  "  used  as  distinguished  from,  and  contrasted  with  the 
River  St.  Lawrence  alone  ;  but  every  river  not  emptying  itself  into  the 
said  river,  and  intended  to  be  divided,  which  was,  or  could  possibly  have 
been  contemplatf  d  by  the  framers  of  the  treaty  of  1763,  as  failing  into  the 
Atlantic  Ocean,  falls  into  it  through  some  intermciliato  gulf  or  bay,> 
known,  and,  iu  Mitchell's  map,  designated  by  a  specific  and  distinct 
name :  that  is  to  say  ;  the  River  Ristigouche,  thrci.'jh  the  Bay  des 
Chaleurs,  and  the  Gulf  of  St.  Lawrence  ;  the  River  St.  Jonn,  through 
the  Bay  of  Fundy  ;  the  Rivers  Magaguadavic,  (Mitchell's  St.  Cro?;:) 
und  Scoodiac,  (Mitchell's  Passamacadic)  through  the  Bay  of  Passama- 
quoddy  and  the  Bay  of  Fuudy  ;  the  Penobscot  through  the  bay  of  the 
game  name;  the  Kennebec  through  the  Sogadthock  Bay;  and  the 
Connecticut  River  through  Long  Island  Souiid,  which  last  inlet  is  as 
much  a  close  and  dit^tinct  sea  or  portion  of  the  Atlantic  Ocean  as  the 


Allantic  Ocean. 


49 


Gulf  of  St.  Lawrence,  and  more  bo  than  the  Bay  of  Fundy.  So  that  if 
the  rivers  which  fall  into  the  Atlantic  through  a  gulf,  bay,  or  inlet,  known 
by  a  distinct  name,  are  not,  under  the  treaty  of  1783,  rivers  falling  into 
the  Atlantic  Ocean,  there  is  not  a  single  river  intended  to  be  divided} 
to  which  the  description  applies. 

Such  bays  as  the  Sagadahock  and  the  Penobscot,  are  considered  in 
the  British  Statements,  as  «  merely  the  cxpauhions  of  the  mouth  of 
I'vers  of  which  they  bear  tlie  rame,  and  to  be  regarded  in  no  other  light 
than  as  portions  of  the  rivers  themselves." 

'Se  assertion,  that  the  ^erm  Atlantic  Ocean  does  not  generally 
embrace  the  hays  und  gulfs  coniieuted  with  it,  rests  on  the  fact  that 
such  gulfs  and  bays  are  designated  as  such  ;  and  that  fact  is  as  true  of 
the  Sagadahock  and  Penobscot  Bays,  as  of  the  Bay  of  Fundy  or  of  the 
Gulf  of  St.  Lawrence.  And  if  those  Bays  v/hich  are  described  in  the 
British  Statement,  as  the  expansions  of  the  mouths  of  river*^,  can  be  re- 
(jarded  in  no  other  light  than  as  portions  of  the  rivers  themselves,  those 
bays  aisc  which,  like  that  of  Fundy,  are  merely  contractions  of  the 
Ocean,  must  necessarily  be  regarded  only  as  portions  of  the  Ocean 
itself. 

It  cannot,  at  all  events,  be  denied,  that  Long  Island  Sound,  through 
which  Connecticut  River  empties  itself  into  the  Atlantic  Ocean,  is  a 
large  inlet  of  the  Atlantic,  of  a  more  distinct  and  marked  character  than 
the  Bay  of  Fundy ;  nor  that  the  Rivei  Connecticut  is,  as  much  as  the 
PpLobscot  and  the  Kennebec,  one  of  the  rivers  describe'  in  the  treaty, 
as  falling  into  the  Atlantic  Ocean,  and  which  arc  to  be  divided  from  the 
rivers  falling  into  the  St.  Lawrence  ;  since  the  boundary  line  extends 
along  the  dividing  Highlands,  as  far  as  the  north-westernmost  source 
of  that  river,  (c)  and  must  pass  along  its  more  easterly  sources. 

Great  stress  is  laid  on  the  fact,  that  the  rivers  intended  to  be  divided, 
or  contradistinguished,  from  those  emptying  themselves  into  the  River 
St.  Lawrence,  are  defined  in  the  Proclamatian  of  1763,  and  in  the 
Quebec  Act,  ns  falling  into  the  Sea ;  acd,  in  the  treaty,  as  falling  into 
the  Atlantic  Ocean. 

The  word  "  Sea  "  's  more  comprehensive  than  the  words  Atlantic 
Ocean,  not  as  including  bays  or  gulfs,  which  are  par;s  of  the  said 
Ccean,  but  because  it  also  embraces  the  Pacific,  Indian  Oceans,  and 
other  great  subdivisior?  which  are  no  part  of  the  Atlantic.  And  as 
none  of  those  gre^t  subdivisions  of  the  Sea,  save  the  Atlantic  Ocean, 
has  any   connexion   with   the    subject    matter  of   the   Proclamation, 


■  I: 


(c)  The  Connecticut  River  rises  in  latitude  45*  10 ,  at  the  height  of  land  ;  it  has 

its   biith at  the  height   of  the  land.    (Fownall  as  already 

quoted,  j 


44 


TertM  of  the  Treaty. 


m  'i 


P  .1! 


of  the  Quebec  Act,  or  the  Treaty ;  as  no  other  but  the  Atlantic  lies  ad* 
jacent  to  the  countries  designated  in  those  three  instruments,  the  words 
"  Seo  "  and  "  Atlantic  Ocean  "  are  used  there  in  the  same  sense.  Se- 
veral instances  might  be  found  ;  {d)  but  what  will  altogether  remove  any 
doubt,  in  that  respect,  is  that  the  two  expressions  are  used  as  synony- 
mous in  the  Proclamation  itself,  and  that,  too,  with  respect  to  rivers  fall- 
ing into  the  Sea  or  Atlantic  Ocean- 

The  provision  of  the  Proclamation  last  quoted,  declares  it  to  be  the 
Royal  will,  that  "  No  Governor,  &c.  of  oui  other  Colonies  or  Planta- 
tions in  America,  &c.,  do  presume,  &c.  to  grant  warrants  of  survey,  or 
pass  patents  for  any  lands  beyond  the  heads  or  sources  of  any  of  the 
rivers  whieh  fall  into  the  Atlantic  Ocean  from  the  westy  or  north-west" 
^c.  And  the  Proclamation  then  proceeds  to  declare  that  the  King  does 
reserve  under  his  Sovereignty  and  dominion  for  the  use  of  the  Indians 
«  all  the  lands  and  territories  lying  to  the  westward  of  the  sources  of  the 
rivers  which  fall  into  the  Sea  from  the  loest,  and  north'iceat  as  afore- 
said,'" ^c. 

It  has  been  demonstrated,  that  the  Highlands  contemplated  and  de- 
scribed by  the  Proclamation  of  1763,  and  by  the  Quebec  Act,  viz  :  the 
Highlands  which  divide  the  rivers  that  empty  themselves  into  the  River 
St.  Lawrence  from  those  which  fall  into  the  Sea,  are  the  identical  High- 
lands contemplated  and  described  in  the  treaty  of  1783,  viz :  the  High- 
lands which  divide  those  rivers,  that  empty  themselves  into  the  River 
St.  Lawrence  from  those  which  fall  into  the  Atlantic  Ocean. 

As  this  important  fact  has  been  questioned  in  the  British  Statements, 
it  is  necessary  again  to  refer  to  the  conclusive  proofs  given  in  the  first 
section  of  this  argument ;  1.  that  the  north-west  angle  of  Nova  Scotia 
is  placed,  by  the  express  terms  of  the  treaty,  on  the  highlands  which  di- 
vide the  waters  of  the  River  St.  Lawrence  from  the  Atlantic  Rivers  :  2. 
that  the  mention  in  the  treaty  of  the  north-west  angle  of  Nova  Scotia, 
instead  of  defining  only  the  north-east  angle  of  the  United  States,  could 
only  be  in  reference  to  such  an  angle  previously  designated  :  3.  that 
such  designation  was  accordingly  found  in  the  latest  public  acts  of  the 
British  Government  on  that  subject,  namely  the  Proclamation  of  1763, 
the  Quebec  act  of  1774,  and  the  Commissions  of  all  the  Governors  of 
Nova  Scotia  subsequent  to  1763. 

By  the  Commissions  of  all  the  Governors  of  Nova  Scotia,  from  the 
year  1763,  to  that  of  the  29th  of  July,  1782,  issued  to  John  Parr,  who 

(d)  In  the  Charter  of  Massachusetts,  are  found  the  following  words,  "the  Atlan- 
tic, or  Western  Sea,  or  Ocean,"  The  British  Agent  uvider  the  commission  of  1797, 
alluding  to  the  southern  boundary  of  the  Province  of  Cluebec  as  prescribed  by  the 
Proclamation  uf  17C3,  describes  it,  as  highlands  diriding  the  waters  of  the  river  St. 
Lawrence,  from  the  rivers  which  fall  into  the  Sea,  or  "  Atlantic  Ocean." 


Atlantic  Ocean, 


46 


was  the  Governor  at  the  date  of  the  Provisionai  Articles  of  Peace  of 
November,  1782,  and  of  the  deiinitive  treaty  of  September,  1783,  that 
Province  was  declared  to  be  bounded  on  the  westward,  by  a  line  drawu 
from  Cape  Sable  across  the  entrance  of  the  Bay  ofFundy  to  the  mouth 
of  the  River  St.  Croix,  by  the  said  river  to  ita  source,  and  by  a  line 
draicn  due  north  from  thence,  to  the  southern  boundary  of  our  Colony  of 
Quebec ;  and,  to  the  northward,  by  the  said  boundary,  so  far  as  the  west* 
em  extremity  of  the  Bay  des  Chaleurs." 

By  the  Commissions  of  the  Governor  of  the  Province  of  Quebec, 
from  1763  to  1774,  the  southern  boundary  of  that  Province  was  des- 
cribed in  conformity  with  the  ProclaiTiation  of  1763,  as  a  line  which 
«  crossing  the  River  St.  Lawrence  and  the  Lake  Champlain  in  forty-five 
degrees  of  northern  latitude,  passes  along  the  highlands  which  divide  the 
rivers  that  empty  themselves  into  the  said  River  St.  Lawrence  from  those 
which  fall  into  the  sea,  and  also  along  the  north  coast  of  the  Bay  des  Cha. 
leurs."  And  in  the  Commissions  of  Governor  Carleton,  of  27th  De- 
cember, 1774,  and  of  that  granted,  on  the  I8th  of  September,  1777,  to 
Frederick  Haldimand,  who  was  still  Governor  in  November,  1782,  and 
September,  1783,  the  said  Province  is,  in  conformity  with  the  Quebee 
Act  of  1774,  declared  to  be  ''bounded  on  the  south,  by  a  line  from  the 
Bay  des  Chaleurs  along  the  highlands  tvhich  divide  the  rivers  that  empty 
themselves  into  the  River  St.  Lawrence  from  those  which  fall  into  the 
sea,  to  a  point  in  45  degrees  in  northern  latitude,  on  the  eastern  bank  of 
the  River  Connecticut." 

The  north-west  angle  of  Nova  Scotia  is  declared,  by  the  treaty,  to  bo 
on  the  highlands  which  divide  the  Rivers  that  emp'  themselves  into 
the  River  St.  Lawrence,  from  those  which  fall  into  thu  Atlantic  Ocean. 
That  angle  is  proved  to  be  identic  with  that  north-west  angle  of  Nova 
Scotia,  which,  by  the  previous  Acts  of  the  British  Governm«iu,  had 
been  declared  to  be,  on  the  highlands  which  divide  the  rivers  that  empi/ 
themselves  into  the  River  St.  Lawrence  from  those  which  fall  into  the 
Sea.  It  necessarily  follows  that  the  highlands  described  in  the  treaty, 
as  dividing  the  rivers  that  empty  themselves  into  the  River  St.  Laivrence 
from  those  which  fall  into  the  Atlantic  Ocean,  are  precisely  the  same  with 
those  highlands  described,  in  the  previous  Acts  of  the  British  Government, 
as  dividing  the  rivers  that  empty  themselves  into  the  Riter  St.  Lawrence 
from  those  which  fall  into  the  Sea ;  and  therefore,  that  the  term  "  Atlantic 
Oceen,"  as  used  in  that  clause  of  the  treaty,  is  synonymous  with  the 
word  "  Sea,"  as  used  in  the  previous  Acts  of  the  British  Government. 


,i 


It  is  principaMy  on  the  restricted  sense  in  which,  by  the  express  termi 
of  the  treaty,  the  term  Atlantic  Ocean  must  in  one  clause  be  understood. 


46 


Terms  of  the  Treaty. 


Jt  !!■ 


.'ffliil 


liiil: 


that  Great  Britain  relies,  m  order  to  prove,  that  the  River  St.  John  can- 
not be  considered  as  one  of  the  rivers  which,  as  falling  into  the  Atlan. 
tic  Ocean,  is  intended  by  the  treaty  to  be  divided  from  the  rivers  that 
empty  themselves  tnto  the  River  St.  Lawrence. 

The  argument  is  stated  in  the  following  words,  in  the  first  British 
Statement. 

«  That,  in  the  first  place,  the  Bay  of  Fundy  is  not  to  be  considered 
as  comprehended,  under  the  Treaty,  in  the  Atlantic  Ocean,  is  clearly 
demonstrable,  it  is  conceived,  from  the  following  considerations." 

"  In  the  second  article  of  the  Treaty  of  1783,  and  in  one  of  its  most 
essential  points  of  designation,  viz  :  that  of  the  extreme  eastern  and 
the  extieme  western  Sea  coast  Boundaries  of  the  United  States,  the  Bay 
of  Fundy  and  the  Atlantic  Ocean  are  specifically  distinguished  the  one 
from  the  other  ;  the  latter  or  extreme  western  boundary,  being  in  explicit 
terms,  described  as  terminating  in  the  Atlantic,  by  name,  while  the 
former  or  extreme  eastern  boundary  is,  in  v<;qually  explicit  terms,  des- 
cribed, as  terminating  in  the  Bay  of  J)  andy,  hy  name." 

"  The  extreme  western  limit  on  the  sea  coast  is  described,  as  formed 
by  a  line  drawn  along  the  middle  of  St.  Mary's  River  to  the  Atlantic 
Ocean.  The  extreme  eastern  limit  is  described  as  formed  by  a  line 
drawn  along  the  middle  of  the  River  St.  Croix  from  its  mouth  in  the 
Bay  of  Fundy,  &c." 

"  That  article  after  describing  other  parts  of  the  general  boundaries 
concludes  thus :" 

"  Where  the  aforesaid  boundaries  between  Nova  Scotia  on  the  one 
part,  and  East  Florida  on  the  other,  shall  respectively  touch  the  Bay  of 
Fundy  and  the  Atlantic  Ocean." 

"  If  one  of  these  two  terms  is  to  be  taken  as  compreh^^nded  in  the 
other,  why  specify  both  ?  The  declaration  that  the  boundaries,  eastern 
and  western,  of  the  United  States,  should  touch  the  Atlantic  at  each  ex- 
tremity of  the  country,  would  surely  have  been  amply  sufficient  for  all 
purposes  of  delimitation,  had  not  the  term  "  Bay  of  Fundy"  been  in- 
tended as  totally  distinct  from  the  term   •  Atlantic  Ocean." 

"  In  one  part  of  the  Treaty,  then,  the  terms,  "Bpy  of  Fundy"  and 
"Atlantic  Ocean,"  are  manifestly  intended  as  distinct  and  separate  the 
one  from  the  other.  But  being  so  taken  in  one  part,  they  must  surely  be 
equally  so  considered  in  every  other  part ;  for  it  would  be  contrary  to  all 
reason  and  consistency  to  assign  one  meaning  to  a  term  in  one  clause, 
and  a  different  meaning  to  the  same  term  in  another  clause  of  the  same 
instrument." 

In  the  second  British  statement,  it  is  likewise  aflir,  led  that,  «  nothing 
can  be  more  clear  or  positive  than  the  distinction  established  in  the  ar- 
ticle of  the  treaty  between  the  Atlantic  Ocean  and  ttie  Bay  of  Fundy." 


Atlantic  Oceaiu 


4t 


ohn  can* 
[le  Atlan. 
vers  that 

3t  British 

onsidered 
is  clearly 
ms." 

)f  its  most 
istern  and 
s,  the  Bay 
ed  the  one 
in  explicit 
while  the 
terms,  des- 

as  formed 
iie  Atlantic 
I  by  a  line 
outh  in  the 

boundaries 

n  the  one 
[the  Bay  of 

ided  in  the 
ies,  eastern 
lat  each  ex- 
lent  for  all 
"  been  ic- 

[undy"  and 
sparate  the 
St  surely  be 
jtrary  to  all 
)ne  clause, 
If  the  same 

«  nothing 

in  the  ar- 

If  Fundy." 


« <<  In  all  the  public  documents  (the 

proclamation  of  1763,  the  charter  to  Sir  William  Alexander,  the  com- 
mission of  Mr.  Wilmot,  Governor  of  Nova  Scotia,  the  treaty  of  1783, 
&c.,)  the  limits  of  the  Bay  of  Fundy  are  substantially  the  same,  and  quite 
conformable  to  the  geographical  character  of  the  place.     The  position 
and  limits  of  the  Bay  of  Fundy  being  thus  clear,  and  the  contradistinc- 
tion  between  that  bay  and  the  Atlantic  Ocean  being  equally  so  in  the 
treaty  when  speaking  of  the  sea  coast,  it  follows  beyond  controversy, 
that  according  to  the  meaning  of  the  treaty  in  this  part  of  it,  the  Atlan. 
tic  Ocean  begins  only  where  the  Bay  of  Fundy  ends,  and  that  the  frara- 
ers  of  the  treaty,  when  thus  using  the  term  Atlantic  Ocean,  had  in  view 
diat  part  of  the  sea,  which  lies  westward  of  the  moutl^iof  the  Bay  of  Fundy. 
The  American  Statement  must  therefore  of  necessity,  err,  when  inter* 
preting  the  treaty  in  such  manner  as  to  suppose  the  Bay  of  Fundy  in* 
eluded  in  the  term  Atlantic  Ocean,  as  a  general  appellation  applied  to 
th''  Sea  coast.     The  framers  of  the  treaty,  when  describing  St.  Maiy'ji 
River  as  going  down  to  the  Atlantic  Ocean,  and  the  River  St.  Croix  as 
having  its  mouth  in  the  Bay  of  Fundy,  had  no  doubt,  particularly  in  view 
the  coast  of  the  Atlantic  Ocean,  which  terminates  at  the  Bay  of  Fundy* 
where  the  name  of  that  bay  begins  to  have  its  appropriate  and  exclusive 
epplication." 

<«  And  this  being  the  case,  as  heynd  all  controversy  it  was,  is  it  cre- 
dible, that  in  the  very  next  line  of  the  same  instrument,  the  same  men 
should  have  used  the  same  term  of  Atlantic  Ocean,  intending  that  it 
should  comprehend  the  whole  coast  together  with  the  Bay  of  Fundy  and 
the  Gulf  of  St.  Lawrence,  both  of  which  are  particularly  marked  on  the 
map,  and  are  universally  known  by  thei»  distinctive  appellations,  and 
with  a  similar  precision  of  limits,  as  the  River  St.  Lawrence  itself; 
these  three  names  being,  moreover,  all  of  them  used  in  the  treaty  with- 
out description,  as  sufficiently  distinguishing  the  several  places  which 
they  respectively  designate  1" 

The  facts  are  in  substance  correctly  stated.  The  sweeping  inference 
is  altogether  denied  by  the  United  States. 

The  treaty  first  describes  the  highlands,  as  dividing  those  rivers  that 
empty  themselves  into  the  River  St.  Lawrence,  from  those  which  fall 
into  the  Atlantic  Ocean. 

In  that  clause,  the  Atlantic  Ocean  is  contradistinguished  only  from  the 
River  St.  Lawrence'. 

The  treaty  describes  another  part  of  the  boundary  as  being,  <*  down 

along  th    middle  of  St  Mary's  River  to  the  Atlantic  Ocean.     East  by 

a  Hue  to  be  drawn  along  the  middle  of  the  River  St.  Croix  from  its 

mouth  in  the  Bay  of  Fundy  to  its  source." 

Here  the  St.  Mary's  River  is  designated  as  having  its  mouth  in  the 


!;■  V 


48 


Terms  of  the  Treaty. 


m 


iWii 


m 


Atlantic  Ocean ;  and  the  River  St.  Croix  as  having  its  mouth  in  the 
Bay  of  Fundy. 

Finally,  the  treaty,  in  reference  to  the  Islands  within  twenty  leagues 
of  any  part  of  the  chores  of  the  United  States,  describes  them  as  lying 
between  lines  to  be  drawn  due  East  from  the  points,  where  the  aforesaid 
boundaries  between  Nova  Scotia  on  the  one  part,  and  East  Florida  on 
tlie  other,  shall  respectively  touch  the  Bay  of  Fundy  and  the  Atlantic 
Ocean. 

In  this  clause  the  Atlantic  Ocean  is  expressly  distinguished  from  the 
Bay  of  Fundy :  and  the  term  is  there  limited  and  restrained,  so  as  not  to 
include  the  Bay  of  Fundy. 

The  qaestion  ai  Usue  is,  whether,  because  in  one  part  of  the  article, 
the  Bay  of  Fundy  is  twice  designated  by  its  specific  name,  and  once  as 
coutradistiuguisheo  from  the  Atlantic  Ocean,  the  two  terms  must  be  con- 
sidered as  distinct  and  separate  throughout  the  treaty  :  whether,  because 
the  meaning  o^  the  term  Atlantic  Ocean  is,  in  one  clause,  restrained  by 
an  express  limitation,  it  is  to  be  considered,  as  having  the  same  restrict- 
ed sense  in  another  clause,  where  it  is  used  without  that  limitation. 

The  United  States  contend  that  it  would  be  equally  contrary  to  reason 
and  common  usage,  to  assign  the  same  meaning  to  a  term  in  one  clause, 
which  it  may  have  in  another  clause  of  the  same  instrument,  when  it 
appears  from  the  general  tenor  of  the  two  clauses,  and  the  expressions 
used  in  each  respectively,  that  the  term,  in  one  is  restrained  by  those  ex- 
pressions,  and  has,  therefore,  a  narrower  signification  ;  whilst,  in  the 
other,  it  is  used  in  a  more  general  sense,  or  is  restrained  in  a  different 
manner. 

In  one  of  the  clauses  of  the  treaty,  the  term  "  Atlantic  Ocean"  is  con- 
tradistinguished from,  and  must,  in  construing  that  clause,  be  held  as 
distinct  from  the  Bay  of  Fundy.  In  another  clause  of  the  treaty,  the 
came  term  is  contradistinguished  from  the  River  St.  Lawrence  alone, 
and  must,  accordingly,  in  construing  that  clause,  be  held  as  distinct 
from  that  river  alone,  and  not  from  the  Bay  of  Fundy,  nor  from  any  of 
the  other  inlets,  which,  in  its  general  sense  and  common  acceptation, 
are  part  of  the  Atlantic  Ocean. 

This  is  perfectly  consistent  with  the  appropriate  rules  of  language  by 
which  every  instrument  must  be  construed. 

"  Man  is  superior  in  intelligence  tu  aii  other  animals 

The  superior  intelligence  of  man  over  woman  is  not 

universally  admitted." 

In  the  last  part  of  the  sentence  the  term  man,  being  contradistinguish* 
cd  from  Woman,  embraces  only  the  male  sex.  The  same  term  man, 
in  the  first  part  of  the  sentence,  does  undoubtedly  embrace  both  sexes. 


Ill 


|« 


Atlantic  Ocean. 


49 


man  is  not 


Tet  according  to  the  mode  of  arguing  of  the  British  Agents,  it  would 
there  exclude  the  female  sex. 

In  the  commissions  of  the  Governors  of  Nova  Scotia,  from  1763  to 
1783,  in  defining  the  boundaries  of  that  Province  which  then  included 
New  Brunswick  ;  the  Bay  of  Fundy,  the  Gulf  of  St.  Lawrence,  and 
the  Atlantic  Ocean  are  each  specially  designated  and  distinguished  from 
each  other ;  the  appellation  of  Atlantic  Ocean  being  expressly  confined 
to  the  main  Ocean,  exclusive  of  that  Bay  and  Gulf,  and  to  that  portion 
of  it  only,  which  extends  from  Cape  Breton  to  Cape  Sable. 

Now,  whatever  point  of  the  line  drawn  due  north  from  the  source  of 
the  River  St.  Croix  may  be  considered  as  the  north-west  angle  of  Nova 
Scotia  ;  or,  in  other  words,  whatever  point  on  that  line  may  be  consider- 
ed as  the  point  of  intersection  with  the  soudiern  boundary  of  the  Colony 
of  Quebec,  as  described  in  the  commissions  of  the  Governors  of  that  Colo- 
ny ;  whether  that  point  of  intersection,  or  north-west  angle  of  Nova  Scotia, 
be  Mars  Hill,  or  any  other  point  north  of  it ;  it  is  impossible  to  draw 
any  line  whatever,  from  that  point  of  intersection  or  north-west  angle 
of  Nova  Scotia,  to  the  western  extremity  of  the  Bay  des  Chaleurs,  which 
will  or  can  divide  from  each  other,  cross,  or  touch  any  other  river  or 
rivers  whatever,  but  such  as  fall,  either  into  the  River  St.  Lawrence,  the 
Gulf  of  St.  Lawrence,  or  the  Bay  of  Fundy. 

No  river  whatever  falls  into  that  portion  of  the  Atlantic  Ocean  which 
extends  from  Cape  Breton  to  Cape  Sable,  but  such  as  have  their  sources 
within  the  Peninsula  or  present  Province  of  Nova  Scotia,  south  of  toc 
Bay  of  Fundy,  of  the  Gulf  of  St.  Lawrence,  and  of  the  Isthmus  which 
separates  those  two  inlets.  It  is  impossible  that  any  such  river  should 
be,  either  divided  from  other  waters,  intersected  or  touched  by  any 
line,  that  can  be  drawn  from  any  point,  north  of  the  source  of  the  River 
St.  Croix,  to  the  western  end  of  the  Bay  des  Chaleurs. 

The  rivers  therefore  which,  according  to  the  designation  of  the  south- 
ern boundary  of  the  Colony  of  Quebec,  or  northern  boundary  of  Nova 
Scotia,  are  to  be  divided,  by  that  boundary,  from  the  rivers  emptying  into 
the  River  St.  Lawrence,  and  are  there  described,  as  rivers  falling  into  the 
sea,  (a  term  used  in  the  Proclamation  of  1763  as  synonymous  with  At- 
lantic Ocean,)  must  of  necessity  be  those,  and  those  alone,  which  fall 
either  into  the  Bay  of  Fundy,  or  into  the  Gulf  of  St.  Lawrence. 

Thus,  although  the  term  "  Atlantic  Ocean"  is,  in  one  part  of  the  des- 
cription of  the  boundary,  used  in  a  limited  sense,  and  exclusive  of  the 
Bay  of  Fundy  and  of  the  Gulf  of  St.  Lawrence  ;  its  synonymous  term 
"  Sea,"  in  another  part  of  the  description,  and  in  reference  to  the  divi- 
sion of  the  rivers  which  are  intended  to  be  divided  by  the  treaty,  em. 
braces  and  embraces  nothing  but  that  Bay  and  Gulf. 

It  may  be  affirmed,  as  a  universal  and  invariable  rule  of  Lnguage^^ 

6 


■'       M 


u     -il 


in 


60 


Temu  of  the  Treaty. 


m 


.111!! 


im 


te  iiH 


that  the  true  sense  of  words  which,  either  are  themselves,  or,  by  some 
adjunct  or  limitation,  may  be  susceptible  of  more  than  one  meaning,  is 
ascertained  by  the  other  words  used,  or  by  the  general  sense  of  the  par- 
ticular sentence,  in  which  such  words  respectively  occur. 

The  following  paragraph  occurs  in  the  first  British  Statement : 

"  It  was  evidently  determined  in  this  very  important  part  of  the  boun* 
dary  to  divide  from  each  other  at  their  sources  the  several  great  rivers 
assigned  to  ,ach  power.  Such  intent  the  expression  «  Highlands  which 
divide"  plainly  denotes  ;  for  what  could  be  the  object  of  selecting  high* 
lands  at  all  in  reference  to  rivers,  if  those  rivers  were  to  be  divided  by 
the  line  of  boundary  indiscriminately,  either  at  their  sources  or  in  any 
part  of  their  course  V 

The  line  of  boundary  last  mentioned  is  the  due  north  line :  and  the 
passage  is  not  quoted  for  the  sake  of  its  logic,  but  only  to  show,  that  the 
word  "  to  divide,"  in  the  iirst  part  of  the  paragraph,  means,  to  separate 
rivers  from  each  other,  whilst,  in  the  latter  part,  the  words  <'  to  be  divid- 
ed "  mean,  to  be  crossed  or  intersected. 

In  order  to  give  any  semblance  of  plausibility  to  the  British  argu. 
ment,  it  would  be  necessary  to  prove,  that  there  was  no  possible  reason 
or  motive  for  designating  River  St.  Croix  as  having  its  mouth  in  the 
Bay  of  Fundy,  and  for  contradistinguishing  that  Bay  from  the  Atlantic 
Ocean,  other  than  the  purpose  of  limiting  throughout  the  treaty  the 
meaning  of  the  term  Atlantic  Ocean,  so  as  to  exclude  the  River  St  John 
from  the  class  of  rivers  contemplated  by  the  treaty  as  falling  into  the 
Atlantic  Ocean. 

If  it  can  therefore  be  shown,  that  there  was  a  natural  reason,  or  spe- 
cial motive  for  inserting  that  designation  and  making  that  distinction 
in  those  clauses ;  and  that  such  reason  and  motive  were  applicable  to 
those  clauses  alone,  there  will  not  remain  even  a  pretence  for  asserting 
that  the  distinction,  thus  made  in  a  part  of  the  treaty  for  a  particular 
purpose,  can  be  construed  to  extend  to  another  clause,  to  which  the  dis- 
tinction and  the  reasons  for  it  were  wholly  inapplicable. 

The  United  States  are  declared  by  the  treaty,  to  be  bounded  "  south 

by  a  line  to  be  drawn along 

the  middle  of  St.  Mary's  River  to  the  Atlantic  Ocean.  East,  by  a  line 
to  be  drawn  along  the  middle  of  the  River  St.  Croix,  from  its  mouth  in 

the  Bay  of  Fundy  to  its  source  ; comprehending  all 

islands  within  twenty  leagues  of  any  part  of  the  shores  of  the  United 
States,  and  Ijring  between  lines  to  be  drawn  due  east  from  the  points, 
where  the  aforesaid  boundaries  between  Nova  Scotia,  on  the  one  part, 
and  East  Florida,  ou  the  other,  shall  respectively  touch  the  Bay  of  Fun- 
dy and  the  Atlantic  Ocean." 

And  it  is  urged,  that  the  last  designation  of  the  Bay  of  Fundy  must 


Atlantic  Ocean. 


«t 


yy  some 
ning,  is 
the  par* 


\e  boun- 
Bt  rivers 
ds  which 
Dg  high* 
videu  by 
r  in  any 

and  the 
',  that  the 

separate 
be  divid- 

ish  argu. 
le  reason 
th  in  the 
!  Atlantic 
reaty  the 
St  John 
into  the 

,  or  spe- 
istinction 
licable  to 
asserting 
larticular 
\  the  dis- 

«  south 
along 
by  a  line 
nouth  in 
nding  all 
United 
points, 
■one  part, 
of  Fun- 

dy  must 


have  been  for  some  other  purpose,  than  in  reference  to  the  Eastern 
Boundary  of  the  United  States  ;  sincci  had  there  not  been  another  ob- 
ject in  view,  it  was  unnecessary  to  mention  that  Bay  ;  and  the  lines 
might  have  been  described  as  correctly,  by  using  the  words,  "  due  East 
from  the  points,  where  the  aforesaid  Boundaries  between  Nova  Scotia, 
on  the  one  part,  and  East  Florida  on  the  other,  shall  respectively  touch 
the  Atlantic  Ocean." 

The  Eastern  extremity  of  the  Southern  Boundary  of  the  United  States 
was,  in  the  first  instance,  designated  to  be  the  point  where  the  St.  Mary's 
River  touched,  or  had  its  mouth,  in  the  Atlantic  Ocean.  And  the 
Southern  extremity  of  their  Eastern  Boundary  was  likewise  designated 
to  be  the  point  where  the  River  St.  Croix  had  its  mouth  in,  or  touched, 
the  Bay  of  Fundy. 

All  the  Islands,  between  lines  to  be  drawn  due  East  from  those  two 
points,  were  afterwards  declared  to  be  comprehended  within  the  United 
States.  In  designating,  therefore,  in  the  last  sentence,  those  two  points, 
precision  of  language  requir^^d,  that  they  should  be  described  in  the  f>ama 
terms  as  in  the  preceding  sentence,  where  they  had  been  designated,  as 
respectively  touching  the  Bay  of  Fundy  and  the  Atlantic  Ocean.  It 
would  have  been  a  most  incorrect  and  inapposite  use  of  language,  after 
those  points  had  thus  been  designated,  to  have  immediately  after  described 
thciu  as  the  points  where  the  aforesaid  Boundaries  shall  respectively 
touch  the  Atlantic  Ocean. 

The  apparent  distinction,  therefore,  made  in  the  last  sentence,  be* 
tween  the  Bay  of  Fuudy  and  the  Atlantic  Ocean,  is  only  in  reference 
to  those  two  points,  and  arises  from  the  manner  in  which  they  had  been 
respectively  designated  in  the  preceding  seutence.  It  is  solely  because 
the  River  St.  Croix  is,  in  the  first  instance,  described  as  having  its  mouth 
in  the  Bay  of  Fundy,  that  it  became  again  necessary  and  proper  to  desig- 
nate, in  the  last  instance,  the  point  from  which  the  East  line  was  to  be 
drawn,  (namely  the  mouth  of  the  River  St.  Croix,)  as  touching  that 
Bay.  Why  the  River  St.  Croix  was  thus  described,  can  alone  require  an 
explanation  :  and  it  will  now  be  shown,  that  there  was  for  this  a  natural, 
and  on  the  part  of  the  American  Negotiators,  an  important  reason. 

It  has  already  been  seen,  that  the  River  St.  Croix  was  designated  in 
the  same  manner  in  the  original  grant  of  Nova  Scotia  to  Sir  William 
Alexander,  for  the  necessary  purpose  of  describing,  with  precision,  the 
position  of  a  r'ver,  then  hardly  known  in  England,  and  on  which  the 
name  of  St.  Croix  had  been  imposed,  but  a  few  years  before  by  the 
French.  The  same  designation  was  adopted  in  the  description  of  the 
Boundaries  inserted  in  the  commissions  of  the  British  Governors  of  that 
Province.  After  the  negotiators  of  the  treaty  of  1783  had  finally  agreed 
to  confirm  the  River  St.  Croix,  as  the  Boundary  between  the  dominions 


•'■<     ''.I 


oa 


Termaojthe  Treaty. 


§  ' 


of  the  two  Powers,  it  was  natural  that  they  should,  and  it  would  indeed 
have  been  an  extraordinary  course,  if  they  had  not  adopted  the  same  terms, 
in  describing  the  situation  of  the  river,  which  had  been  so  long  in  use 
in  the  public  British  documents,  and  which  had  been  preserved  uninter- 
ruptedly to  the  very  date  cf  the  treaty,  (e) 

This  mention  of  the  fact  that  the  River  St.  Croix  had  its  month  in 
that  inlet  of  the  Atlantic  Ocean  known  by  the  name  of  Bay  of  Fundy, 
can  have  no  more  effect  on  other  clauses  of  the  treaty  than  in  Alexan- 
der's Grant,  or  the  Governors'  Commissions.  And  it  has  already  been 
shown,  with  respect  to  both,  that  notwithstanding  thai  specific  mention 
by  name  of  "  Bay  Fundy"  and  of  "  Gulf  of  St.  Lawrence"  in  the  de- 
scription of  the  boundary,  both  that  bay  and  gulf  were  embraced  by  the 
generic  term  used  in  another  clause. 

But  there  was  also  another  and  peremptory  reason  why  the  American 
negotiators  must  have  insisted  that  the  River  St.  Croix  should  continue 
to  be  designated  as  having  its  mouth  in  the  Bay  of  Fundy. 

The  repeated  attempts,  on  the  part  of  the  crown,  to  encroach  in  that 
quarter  on  the  chartered  boundaries  of  the  Province  of  Massachusetts' 
Bay,  have  already  been  mentioned  in  the  Introduction.  The  Govern- 
ment of  Nova  Scotia,  pursuing  the  same  course,  had  in  the  year 
1766  made  a  large  grant  of  land  to  Francis  Bernard,  and  others, 
xoeat  of  the  Schoodic  River,  which  has  ultimately  been  decided  to 
be  the  true  St.  Croix.  That  Government  had,  also,  in  the  year 
1767,  granted  to  William  Owing,  and  others,  the  island  now  known  by 
the  name  of  Campo  Bello.  That  island  is  situated  south  of  a  line  drawn 
due  east  from  the  mouth  of  the  Schoodic.  That  of  Grand  Menan,  accor- 
ding  to  Mitchell's  Map,  lies  chiefly  toest  of  the  line  designated  in  the 
Commissions  of  the  Governors  of  Nova  Scotia,  as  a  line  ''  drawn  from 
Cape  Sable  across  the  entrance  of  the  Bay  of  Fundy,  to  the  mouth  of 
the  River  St.  Croix,"  or  Schoodiac.  Both  have  finally  been  adjudged  to 
Great  Britain,  as.  being  in  1783,  or  having  theretofore  been,  within  the 
limits  of  Nova  Scotia. 

A  conclusive  proof  of  the 'general  prevailing  uncertainty  as  to  what 
river  was  the  true  St.  Croix,  will  be  found  in  the. topographical  des- 
cription of  the  Middle  British  American  Colonies,  published  in  1776, 
by  T.  Pownall,  M.  P.  for  several  years  Governor  of  His  Majesty's 
Province  of  Massachusetts'  Bay,  and  which  has  been  quoted  with  a  high 
encomium  in  the  British  Statement.     His  words  are  : 

"  The  River  Passam-Aqu&da,  or  Possam-Acc^da,  which  runs  into  a 


n "  I 


(e)  In  the  Commission  to  Govenor  Parr,  dated  29th  July,  1782,  the  words  are, 
('bounded  on  the  westward  by  a  line  drawn  from  Cape  Sable  across  the  entrance  of 
the  Bay  of  Pundy,  to  the  mouth  of  the  River  St.  Croix,  by  the  said  river  to  its 
lource,"  &o, 


Atlantic  Ocean. 


68 


Is  into  a 

irords  are, 
itrance  of 
Iver  to  Us 


bay  so  called,  is  the  supposed  eastern  boundary  of  New  England ;  to  the 
east  of  thid  begins  Aqu&da  or  Nova  Scotia ;  an  incertain  River  St.  Croix 
is  the  nominal  boundary.  But  as  the  French,  according  to  their  mode 
of  taking  possession,  always  fixed  a  cross  in  every  river  they  came  to* 
almost  every  river  on  this  coast  of  Sagadahoc  has  in  its  turn  been  deemed 
by  them  La  Riviere  de  St.  Croix.  Under  equivocation  of  this  general 
appellative,  they  have  amused  our  negotiators  on  every  occasion." 

It  will  be  recollected  that  by  ''Sagadahoc"  is  meant  the  ancient  grant 
to  the  Duke  of  York,  or  that  tract  of  land  described  in  the  Charter  of 
Massachusetts,  as  lying  between  Nova  Scotia  and  the  (old)  Province  of 
Maine  ;  that  it  is  thus  laid  down  in  Mitchell's  Map  ;  and  that  as  the 
«  Coast  of  Sagadahoc"  extends  accordingly  from  the  Bay  of  Passamaquod- 
dy  to  that  of  Sagadahoc,  (or  Kennebec,)  it  was  according  to  Pownall  un- 
certain, which  of  the  rivers  between  those  Iimi.ts  was  the  true  St.  Croix. 

Whether  the  fact  alleged  there,  with  respect  to  the  French,  was  correct 
or  not,  is  immaterial ;  nothing  can  show  more  forcibly  how  general  was 
the  opinion  of  the  uncertainty  arising  from  that  cause,  than  to  find  it 
entertained  by  a  late  Govenor  of  the  Province  of  Massachusetts'  Bay, 
one  of  the  men  of  the  time  best  acquainted  with  American  affairs,  and 
asserted  by  him  thirteen  years  after  the  cession  by  France  of  all  her 
possessions  in  North  America,  when  there  was  no  longer  any  motiv* 
for  misrepresentation,  or  cause  for  prejudice. 

In  the  same  manner,  Mr.  Jay,  one  of  the  negotiators  of  the  Treaty 
of  1783,  in  his  deposition  laid  before  the  Commissioners  appointed 
pursuant  to  the  fifth  Article  of  the  Treaty  of  1794,  expresses  himself  as 
follows :  «  In  settling  the  boundary  line  (described  in  the  Treaty,)  and 
of  which  the  River  St.  Croix  forms  a  part,  it  became  a  question,  which 
of  the  rivers  in  those  parts  loas  the  true  River  St.  Croix ;  it  being  said 
that  several  of  them  had  that  name.  They  did  finally  agree  that  the  River 
St.  C>-oix,  laid  down  on  Mitchell's  Map,  was  the  River  St.  Croix  which 
ought  to  form  a  part  of  said  boundary  line." 

So  strongly  impressed  was  that  belief,  that  it  is  found  again  asserted, 
twenty  years  later,  in  the  argument  addressed  in  1797  by  the  British 
Agent  to  the  said  Commissioners,  (who  were  appointed  only  to  decide 
which  river  was  the  true  St.  Croix,)  when  the  Agent  was  arguing  that 
the  Schoodicand  not  the  Magaguadavic,  (Mitchell's  St.  Croix,)  was  the 
river  intended  by  the  Treaty  of  1783. 

After  adverting  to  an  Act  of  Parliament  of  the  year  1774,  (16  Geo. 
III.  ch.  10,)  for  restraining  the  trade  of  Massachusetts'  Bay,  and  other 
colonies,  in  which  it  is  enacted,  "  that  the  river  which  emptieth  itself  in 
Passamacadie  or  Passamaquoddy  Bay,  on  the  western  side,  and  is  com- 
monly called  and  known  by  the  name  of  St.  Croix  River,  be  held  and 
deemed,  for  all  the  purposes  in  this  act  contained,  to  be  the  boundary 

6* 


I  ^U 


64 


Ter*"*  0/  the  Treaty. 


v-  a: 


.V' 


line  between  the  Provinces  of  Massachus  )tts'  Bay  and  Nova  Scotia ;" 
and  after  asserting  that  the  river  thus  designated,  was  that  contemplated  by 
the  Treaty  of  1783,  and  which  ought  accordingly  to  be  declared  the  true 
River  St.  Croix,  the  British  Agent  proceeds  as  follows  : 

"  If  this'  principle  were  once  departed  from,  there  would  be  no 
check  to  contention  on  the  subject,  though  it  would  be  fortunate  to  His 
Majesty's  interests  if  he  were  not  thus  bound ;  as  it  might  be  clearly 
shown  in  that  case,  that  the  River  Penobscot,  once  indiscriminately  with 
the  other  rivers  upon  this  coast  called  the  St.  Croix,  was  the  true  boun- 
dary by  which  Nova  Scotia  or  Acadia  was  ceded  to  His  Majesty  by  the 
Treaty  of  Utrecht,  and  ought  in  such  ease,  by  the  principles  of  the  laws 
of  nations,  to  be  established  as  the  eastern  boundary  of  the  United  States." 

And  he  again  says,  in  answer  to  the  Agent  of  (he  United  States,  who 
contended  that  the  Magaguadavic  was  the  true  St>  Croix  : 

The  argument  of  the  Agent  of  the  United  States  would  certainly  ap- 
ply with  much  greater  force  in  proving  the  Penobscot  to  be  the  river 
agreed  to ;  as  this  river,  besides  being  once  knoion  indiscriminattly 
with  the  other  rivers  by  the  name  of  St.  Croix,  has  been  the  reputed 
boundary  of  Nova  Scotia,  and  was  contended  for  as  such  by  the  British 
Commissaries  at  Paris,  in  the  year  1750,  in  their  memorials  concern- 
ing the  limits  of  Acadia  or  Novn  Scotia." 

It  will  be  readily  perceived,  that  since  the  River  St.  Croix  had,  by  the 
Treaty  of  1783,  been  declared  to  be  the  boundary,  the  Penobscot  could 
not,  in  the  year  1797,  have  been  clai.ned  as  such  on  any  other  ground 
than  as  being  itself  the  true  St.  Croix.  The  British  Agent  asserts  that 
it  ought,  and  would  under  the.  Treaty,  have  been  considered  as  such, 
had  not  a  previous  act  of  Parliament  declared  the  St.  Croix  to  be  a  river 
which  emptieth  itself  into  Passamaquoddy  Bay.  But  that  act  would 
have  given  no  security  against  an  attempt  on  the  part  of  Great  Britain 
to  claim  the  Penobscot  as  the  true  St.  Croix  and  the  boundary  intended 
by  the  treaty  ;  since  the  River  St.  Croix,  that  empties  itself  into  the 
Bay  of  Passamaquoddy,  is,  by  the  act  of  Parliament,  to  be  held  and  deem- 
ed the  boundary  between  the  Provinces  of  Massachusetts'  Bay  and  Nova 
Scotia,  only  for  the  purposes  contained  in  the  act ;  and  since  that  tem- 
porary enactment,  made  for  the  special  purpose  of  embracing  within 
the  provisions  of  the  restraining  act  all  the  population  west  of  Passamar 
quoddy  Bay,  had  expired  with  the  act  itself,  {j) 

^— — ^—  .  II     ■    T      I        I      I  <  —  —    ■■-■!■  II  H      I   II      I    ■■  I  ^    II  —    iWI  IM—    I    MM    ■  ■— — ^M^H^.^^  ■      ■!■■      — — ^— — 

(/■)  The  reason  why  the  British  i\.gent  adverted  to  the  Act  of  Parliament  which 
was  inapplicable,  and  not  to  the  Treaty,  is  obvious.  He  was  attempting  to  show 
that  the  westernmost  of  the  two  rivers  that  empty  themselves  into  Passamaquoddy 
Bay,  was  the  true  St.  Croix.  The  Act  of  Parliament  had  made  a  provision  to  that 
effect ;  and  the  treaty  had  only  generally  declared  the  mouth  of  the  River  St,  Croix 
to  be  in  the  Bay  of  Fundy« 


Atlantic  Ocean, 


65 


Scotia ;" 
plated  by 
I  the  true 

1  be  no 
te  to  His 
be  clearly 
alely  with 
rue  6oim- 
sty  by  the 
f  the  lawa 
1  States^ 
latee,  who 

tainly  ap- 
the  river 
riminaltly 
le  reputed 
he  British 
i  concern- 
ad,  by  the 
scot  could 
»er  ground 
isserts  that 
d  as  such, 
be  a  river 
act  would 
3at  Britain 
y  intended 
If  into  the 
and  deem- 
and  Nova 
that  tein- 
iiig  within 
f  Passamar 


arnent  which 
ting  to  show 
isamaqvioddy 
trisioti  to  that 
ver  St.  Croix 


It  was  that  provision  in  the  treaty  itnelf,  declaring  the  mouth  of  the 
River  St.  Croix  to  be  in  the  Bay  of  Fundy,  which  afforded  the  security 
required  iu  that  respect. 

Under  the  prevailing  belief,  that  the  designation  of  a  River  St.  Croix, 
by  that  name  only,  was  not  sufficient  to  determine  which  river  was  the 
true  St.  Croix,  and  with  the  knowledge  of  the  anxious  desire  evinced  by 
Great  Britain  to  extend,  under  color  of  that  uncertainty,  the  boundaries 
of  Nova  Scotia  to  the  Penobscot,  the  insertion  of  that  provision  iu  the 
treaty  was  of  paramount  importance  to  the  United  States. 

By  declaring  the  mouth  of  the  River  St.  Croix  to  be  in  the  Bay  of 
Fundy,  thr  only  question  which  might  remain  susceptible  of  doubt,  was, 
which  of  the  two  rivers  that  empty  themselves  into  Passamaquoddy  Bay 
was  entitled  to  the  designation  of  River  St.  Croix  ?  The  western  ex- 
tremity of  the  last  mentioned  bay,  or  at  the  farthest  of  Grand  Menan  Is- 
land, forms  also  the  Western  extremity  of  the  Bay  of  Fundy,  as  will  be 
seen  by  Mitchell's  Map,  by  the  Map  A,  and  by  reference  to  what  is  de- 
scribed as  the  entrance  of  the  Bay  of  Fundy,  in  Sir  William  Alexander's 
Grant.  Not  only  was  every  pretence  to  claim  the  Penobscot,  as  the 
true  St.  Croix,  removed  by  that  provision,  but  no  river  whatever  could 
be  claimed  as  such,  that  lay  west  of  Passamaquoddy  Ray ;  since,  as 
will  appear  by  Mitchell's  Map,  Machias  River,  which  is  the  next  in  that 
dnection,  lies  west  of  the  Western  extremity  of  Grand  Menan  Island. 

li  may,  perhaps,  be  asked  why,  with  Mitchell's  Map  before  them, 
where  the  mouth  of  the  River  St.  Croix  is  laid  down,  as  it  really  is,  in 
Passamaquoddy  Bay,  which  is  there  designated  by  its  dictinct  name, 
that  river  was  not,  in  the  treaty,  declared  to  have  its  mouth  in  that  bay, 
instead  of  the  Bay  cf  Fundy? 

Such  spe''.i6c  designation  of  the  Passamaquoddy  Bay  was  unneces- 
sary ;  since  it  would  not  have  rendered  the  description  more  precise, 
with  respect  to  the  obiect  in  view.  Every  river  west  of  the  Island  of 
Grand  Menan  was  equally  excluded,  whether  the  mouth  of  the  River  St. 
Croix  was  declared  to  be  in  the  Bay  of  Fundy,  or  in  that  of  Passama- 
quoddy ;  and  either  designation  would  have  lefl  it  equally  doubtful, 
which  of  the  two  rivers  was  the  true  St.  Croix.  The  negotiators  being 
unacquriinted  with  the  Indian  names  of  the  rivers  in  that  quarter,  could 
not  have  used  expressions  more  precise  than  those  of  the  designation 
which  they  adopted,  and  which  had  pre^iled  from  the  date  of  Sir  Wil- 
liam Alexander's  Grant  to  that  of  the  treaty. 

It  will  not  now  be  denied  that  there  were  cogent  reasons,  abundant 
cause,  for  designating  in  a  special  manner,  with  as  much  precision  as 
could  be  obtained  from  the  materials  in  hand,  the  place  where 
the  mouth  of  the  intended  River  St.  Croix  was  to  be  found.  Not- 
withstanding tho  precautions  taken  iu  that  respect,  the  river  contem- 


'I 


i      i 


kA 


56 


Terms  of  the  Treaty. 


plated  by  the  negotiators,  that  which  in  Mitchell's  Map  bears  the  name 
of  St.  C.oix,  has  not  been  coufii-med  as  the  boundary  between  the 
two  countries.  The  Schoodiac,  the  most  xveslerly  river  that  empties 
into  Bay  of  Fundy,  has  been  decided  to  be  the  true  St.  Croix.  But  from 
whn.t  has  been  stated,  and  indeed,  judging  from  the  arguments  adduced 
in  support  of  the  claim  ^ow  advanced  by  Great  Britain,  it  may  be  fair-  • 
ly  presumov],  that  the  field  of  English  pretensions  would  have  been  ex- 
tended far  beyond  the  Schoodiac,  had  it  not  been  limited  to  rivers  having 
their  mouth  in  the  Bay  of  Fundy. 

Can  it  be  now  pretended  that  this  precaution,  the  special  designation 
made  for  a  particular  and  obvious  object,  necessary  in  order  to  obtain 
ihe  object  to  which  it  applied,  was  intended  and  can  be  made  to  extend 
to  another  object,  and  to  have  an  effect  on  the  construction  of  another 
and  distinct  provision  of  the  treaty  1  Can  it  be  contended  that,  because 
it  was  necessary  to  specify  in  what  part  of  the  Atlantic  Ocean  the  River 
St.  Croix  emptied  itself,  it  follows,  that  when  speaking,  in  another  clause 
of  the  treaty,  of  that  Ocean,  not  in  reference  to  that  part,  but  as  contra- 
distinguished exclusively  from  the  River  St.  Lawrence,  it  must  be  so 
understood,  as  to  exclude  that  part  of  it,  (the  Bay  of  Fundy,)  which,  for 
that  particular,  and  for  no  other  reason,  it  had  been  requisite  so  to  spe« 
cify  ?  It  is  obvious,  that  it  is  only  in  case  there  had  been  no  necessity 
to  use  the  designation  of  "  Bay  of  Fundy"  where  it  is  used,  that  there 
would  have  been  any  color  for  the  pretended  inference,  that  that  desig- 
nation was  made  for  all  the  purposes  of  the  treaty,  or  was  intended  to 
control  the  construction  of  any  other  of  its  provisions. 

It  is  believed,  that  it  has  been  demonstrated  in  the  most  conclusive 
manner,  not  only  that  the  line  contended  for  on  the  part  of  Great  Bri- 
tain is  in  direct  violation  of  the  clear  and  express  terms  of  the  treaty,  but 
that  no  other  line  than  that  claimed  by  the  United  States,  can  be  recon- 
ciled with  that  condition  of  the  treaty  which  expressly  requires  the  line 
to  be  on  those  highlands  which  divide  rivers  as  there  described.  The 
objections  raised  against  that  line  rests  only  on  inferences  ;  on  the  as- 
sumed supposition,  that  the  limited  sense,  in  which  the  term  Atlantic 
Ocean  must  be  understood  in  one  clause,  must  necessarily  be  the  mean- 
ing of  the  term  in  every  other  clause  of  the  treaty.  It  has  been  shown 
that  the  general  assertion  is  irreconcilable  with  the  ordinary  rules  of  lan- 
guage, and  that,  as  applied  to  the  special  case  under  consideration,  it  is 
altogether  erroneous.  And  no  stronger  proof  can  be  adduced  of  the  un- 
soundness of  the  argument,  than  that  it  necessarily  leads  to  the  conclu- 
sion, that  the  boundary  line  prescribed  by  the  treaty  is  impossible,  and 
therefore  irreconcilable  with  any  intentions  that  can  be  ascribed  tc  the 
negotiators. 


J 


Atlantic  Ocean. 


57 


It  is  urged  in  the  British  Statemeuts,  that  the  argumeuts  adduced  on 
the  part  of  Great  Britain,  with  respect  to  the  Bay  of  Fundy  and  the  Ri- 
ver St.  John,  apply  with  still  greater  force  to  the  Bay  des  Chaleurs  and 
the  River  Ristigouche ;  first,  because  that  Bay  does  not  open  directly 
into  the  Atlantic,  but  into  a  second  bay,  namely,  the  Gulf  of  St.  Law- 
rence  ;  secondly,  because  both  the  bay  and  the  river  are  still  further  re- 
moved from  the  extreme  eastern  limit  of  the  United  States  ;  and  also, 
because  the  gulf  is  mentioned  in  the  treaty,  in  a  manner  which  distin- 
guishes it  entirely  from  the  Atlantic  Ocean,  except  in  so  far  as  it  is  a 
part  of  the  Sea,  of  which  the  Atlantic  Ocean  also  is  a  part. 

The  facts,  that  the  Ristigouche  empties  itself  into  the  Gulf  through  the 
Bay  des  Chaleurs,  and  that  its  mouth  lies  far  east  of  the  due  north  line, 
are  evidently  irrelevant  to  any  question  at  issue.  The  Gulf  of  St.  Law- 
rence is  designated  by  its  specific  name,  in  but  one  sentence  of  the  trea« 
ty.  It  is  provided,  by  the  third  article,  "that  the  people  of  the  United 
States  shall  continue  to  enjoy  unmolested  the  right  to  take  fish  of  every 
kind  on  the  Grand  Bank,  and  on  all  the  other  Banks  of  Newfoundland ; 
also  in  the  Gulf  of  St.  Lawrence,  and  at  all  other  places  in  the  Sea, 
where  the  inhabitants  of  both  countries  used  at  any  time  heretofore  to 
fish." 

So  far  from  this  provision  having  any  bearing  on  the  clauses,  in  which 
the  rivers  falling  into  the  Atlantic  Ocean  are  mentioned,  that  the  only 
question  which  arises,  is,  why  the  Gulf  of  St.  Lawrence  was  at  all  men- 
tioned, fince  the  provision  would  have  apparently  been  as  complete, 
ha'.  *^^hat  name  been  omitted,  and  the  clause  had  simply  declared  the  right 
to  ike  fish,  to  extend  to  *<  all  places  in  the  Sea,  where  the  inhabitants  of 
both  countries  used  heretofore  to  fish." 

The  reason  was,  that  the  Gulf  of  St.  Lawrence  being  a  close  Sea,  the 
shores  of  which  did  belong  to  Great  Britain  exclusively,  a  doubt  might 
have  arisen  whether,  notwithstanding  the  general  provision,  the  people 
of  any  other  nation  could  fish  there  without  an  express  stipulation  to 
that  efTect.  Although  the  Gulf  of  St.  Lawrence  is  actually  declared  in 
the  clause  to  be  a  place  in  the  Sea,  it  was  deemed  proper  to  name  it  ex- 
pressly, by  way  of  greater  caution,  and  in  order  to  remove  every  possible 
doubt  on  that  subject.  And  the  meaning  of  the  clause  is,  that  the  people 
of  the  United  States  shall  have  the  right  to  fish  ai  all  places  in  the  Sea, 
where,  &c.,  without  even  excepting  the  Gulf  of  St.  Lawrence,  and  al. 
though  this  might  be  considered  as  under  the  exclusive  jurisdiction  of 
Great  Britain. 

The  Gulf  of  St.  Lawrence  is,  in  that  clause,  assimilated  to  the  Banks 
of  Newfoundland  ;  both  being  declared  to  be  places  in  the  sea :  and 
vhat  sea  was  meant  cannot  be  doubted,  unless  it  should  be  denied  that 
the  Banks  of  Newfoundland  are  in  the  Atlantic  Ocean. 


I 


68 


Temu  of  the  Treaty. 


^i 


)S' 


, 


;  : 


h'r 


, 


I'liip ' 
H 

m 

('ill 


'm 


Numerous  instances  have  already  been  adduced  showing,  that,  both 
in  its  general  sense  and  usual  acceptation,  the  term  Atlantic  Ocean  is 
always  understood,  as  including  the  Gulf  of  St.  Lawrence.  And  it 
must  be  recollected,  that  that  Gulf  is  not  liable  to  the  objection,  to  be  in 
another  clause  of  the  treaty  contradistinguished  from  that  Ocean. 

Amongst  other  proofs,  reference  may  be  made  to  the  commissions  of 
the  Governors  of  New  Brunswick,  in  which  the  Atlantic  Ocean  em. 
braces  no  other  portions  of  the  Sea  than  that  Gulf  and  the  Bay  of 
Fundy. 

In  the  grant  to  Sir  William  Alexander,  the  term  Seas  is  uniformly 
used  instead  of  that  of  Atlantic  Ocean.  That  the  words  are,  as  to  the 
object  of  the  grant,  perfectly  synonymous,  and  that  they  were  so  under- 
stood, appears  from  a  publication  of  the  year  1624,  by  the  grantee  him- 
self, where,  speaking  of  the  limits  of  his  patent,  he  says,   '<  leaving  the 

limits  to  be  appointed  by  his  Majesty's  pleasure, 

with  New  England ;  and  on  all  other  parts  it  is  compassed  by  the  Ocean 
and  the  great  river  of  Canada." 

Another  instance  will  be  mentioned,  where  the  meaning  and  effect  of 
the  expressions  used  were  considered  with  deliberate  attention. 

In  the  course  of  the  Ghent  negotiations,  the  British  plenipotentiaries^ 
at  the  conference  of  1st  December,  1814,  proposed  the  following  article. 

"  That  all  vessels  and  effects  which  may  be  taken,  after  the  space  of 
twelve  days  from  the  period  of  the  exchange  of  the  said  ratifications, 
upon  all  parts  of  the  coast  of  North  America,  from  the  latitude  of  23 
degrees  north  to  the  latitude  of  47  degrees  north,  and  as  far  eastward  in 
the  Atlantic  Ocean  as  the  05th  degree  of  west  longitude,  from  the  me- 
ridian of  Greenwich,  shall  be  restored  on  each  side. That  the 

term  shall  be  thirty  days  in  all  other  parts  of  the  Atlantic  Ocean,  as  far 
eastward  as  the  entrance  of  the  British  Channel,  and  southward  as  far  as 
the  equinoctial  line  oi  equator ;  and  the  same  time  for  the  Gulf  of  Mexi- 
co and  all  parts  of  the  West  Indies. Forty  days  for  the  Brit- 
ish Channel  and  the  North  Seas ;  the  same  time  for  all  parts  of  the  Medi- 
terranean.  And  one  hundred  and  fitly  days  for  all  other  parts  of 

the  world,  without  exception." 

The  words  used  in  reference  to  the  period  of  twelve  days,  viz  :  "  upon 
all  parts  of  the  coasts  of  North  America,"  embrace,  of  course,  all  the  ad- 
jacent Bays  and  Gulfs  as  far  north  as  the  latitude  of  47  degrees.  But  it 
will  be  seen,  by  referring  to  any  map,  that  that  parallel  of  latitude 
touches  the  northern  extremities  of  the  Islands  of  Cape  Breton  and  St. 
John,  leaving,  south  of  it,  a  very  small  portion  only  of  the  Gulf  of  St. 
Lawrence.  Almost  the  whole  of  that  gulf,  (including  the  entrance  of  the 
river  of  the  same  name,  the  Straits  of  Belisle,  and  those  which  lie  be- 
tween Cape  Ray,  of  Newfoundland,  and  the  North  Cape  of  Cape  Bre 


dtlantic  Ocean. 


69 


l«  upon 
^he  ad- 

Butit 

latitude 

\nd  St. 

lof  St. 

of  the 

lie  be- 
|e  Bre 


I 


ton,)  lies  north  of  that  latitude,  and  is  not,  therefore,  included  within  the 
provision  limiting  the  captures  to  twelve  days. 

The  Gulf  is  not  included  ii^  the  forty  days'  provision,  which  applies 
only  to  the  British  Channel,  the  North  Seas,  and  the  Mediterranean. 
And  it  must,  therefore,  have  been  necessarily  comprehended  in  the  term 
of  thirty  days,  which  extends  to  all  other  parts  of  the  Atlanlic  Ocean  as  far 
east  as  the  British  Channel,  and  south  aa  the  Equator ;  unless  it  should 
be  supposed  to  have  been  included  in  the  term  of  <<  150  days  for  all  other 
parts  of  the  world  without  exception  :"  and  this  supposition  is  untenable. 
The  Gulf  of  St.  Lawrence,  particularly  the  Straits   above  mentioned 
and  the  entrance  of  the  River  St.  Lawreuco,  are  the  highway,  and  form 
the  only  outlets  for  the  whole  trade  between  Great  Britain  and  Quebec; 
a  trade  which  was,  at  that  time,  carried  on  exclusively  in  British  vessels. 
To  have,  therefore,  included  that  gulf  within  the  terra  ofl50  days,  would 
have  been  tantamount  to  a  permission  to  the  American  armed  vessels 
and  privateers,  coming  from  ports  within  fourteen  days  sail  of  the  entrance 
of  the  gulf,  to  intercept  and  capture,  without  any  difficulty  and  with  im- 
punity, the  whole  of  that  trade,   during  the  space  of  more   than  four 
mouths.     This  is  too  absurd  to  have  been  intended  by  the  British  Pleni- 
potentiaries :  and  what  proves,  beyond  doubt,  that  such  was  not  their  in- 
tention, is,  that  the  period  for  allowing  captures  in  the  gulf  was  ultimate- 
ly made  not  longer  but  shorter  than  thirty  days  t  which  was  effected,  by 
extending  the  period  of  twelve  days  ^'  upon  all   parts  of  the  coast  of 
North  America,"  as  far  north  as  the  latitude  of  50  degrees. 

It  must  also  be  observed,  that  the  British  Plenipotentiaries,  in 
makiug  that  proposal  (of  the  Ist  December,  IS  14),  had  duly  attended  to 
the  propriety  of  specifying,  by  their  distinct  names,  those  outlets  or  seaa 
respecting  which  there  might  be  some  doubt ;  and  which  from  long  and 
common  UF^age  might  be  considered  as  not  included  within  the  term 
<<  Atlantic  Ocean."  Amongst  others,  <<  the  Gulf  of  Mexico  and  all  part# 
of  the  West  Indies"  were  distinctly  specified,  as  coming  within  the  term 
of  thirty  days ;  and  the  gulf  of  St.  Lawrence  waa  not  named,  it  being 
perfectly  well  understood,  that  it  was  of  course  included  in  the  term  <'all 
other  parts  of  the  Atlantic  Ocean." 

It  cannot,  therefore,  be  doubted,  that  the  rivers  which  fall  into  the 
Gulf  of  St.  Lawrence,  are  clearly  embraced  by  the  term,  "Rivers  that  fall 
into  the  Atlantic  Ocean  ;"  and  that  the  north-west  angle  of  Nova  Scotia 
and  the  boundary  line,  extending  thence  westwardly,  designated  in  the 
treaty  as  being  "on  and  along  the  highlands  which  divide  the  rivers  that 
empty  themselves  into  the  River  St.  Lawrence,  from  those  which  fall  into 
the  Atlantic  Ocean,"  may,  in  strict  conformity  with  that  provision,  be 
placed  on  and  along  highlands  dividing  the  tributary  streams  of  the  Riv- 
er St.  Lawrence,  from  those  of  the  River  Ristigouche. 


«0 


Terms  of  the  Treaty. 


iii: 


The  boundary  between  Nova  Scotia  and  the  Province  of  Quebec  was 
not  a  subject  coming  within  the  purview  of  the  Treaty  of  1783 ;  and  it 
might  be  altered  at  any  time  subsequent  to  the  treaty  by  the  British  Gov- 
ernment. Yet,  the  north-west  angle  of  Nova  Scotia,  for  whatever  pur- 
pose alluded  to,  is,  by  the  treaty,  decilared  to  be  formed  by  the  intersec- 
tion of  the  due  north  line,  with  the  highlands  which  divide  the  rivers 
emptying  themselves  into  the  River  St.  Lawrence  from  those  that  fall 
into  the  Atlantic  Ocean.  Such  highlands  must  necessarily  extend  east- 
wardly  from  the  summit  of  that  angle  ;  and  they  are  therefore  acknow- 
ledged by  the  treaty  to  be,  as  they  had  been  ever  since  1763,  the  south- 
ern boundary  of  the  province  of  Quebec,  and  the  northern  boundary  of 
Nova  Scotia.  This,  though  only  as  a  subsidiary  argument,  authorizes 
a  reference  to  the  effect  which  that  boundary  may  have  on  the  determi- 
nation of  the  north-west  angle. 

It  is  preposterous  to  say,  that  a  line  described  as  dividing  rivers  from 
each  other,  may  intersect  the  largest  river  in  the  Province,  and  that  the 
bed  of  that  river  may,  in  any  sense  of  the  word  be  deemed  <<  high- 
lands." And  no  Hue  can  be  drawn,  in  an  eastwardly  or  northteastward- 
ly  direction  from  Mars  Hill,  or  from  any  other  point  on  the  due  north 
line  south  of  the  River  St.  John,  which  will  not,  within  a  few  miles, 
intersect  the  River  St.  John  and  sink  to  its  level. 

No  line  can  be  drawn  in  the  same  direction,  from  any  point  on  the 
due  north  line  south  of  the  Kiver  Ristigouche,  which  will  divide  the  tri. 
butary  streams  of  the  River  St.  Lawrence  from  any  other  River,  or 
which  can  divide,  from  each  other,  any  other  rivers,  but  rivers  falling 
into  the  Gulf  of  St.  Lawrence,  from  rivers  falling  into  the  same  Gulf  or 
into  the  Bay  of  Fundy. 

It  is  only  from  the  termination  of  the  due  north  line,  which,  as  the 
United  States  maintain,  is  the  north-west  angle  of  Nova  Scotia,  that  an 
eastwardly  line  can  be  drawn ;  which,  in  conformity  with  the  expressions 
used  in  the  treaty  and  in  the  previous  public  acts  of  Great  Britain,  will, 
at  least  for  some  distance,  divide  rivers  emptying  into  the  River  St. 
Lawrence,  from  rivers  flowing  in  a  differenit  direction.  This  necessity 
common  to  the  highlands  of  the  treaty  and  to  those  of  the  Proclamation 
of  1763  and  of  the  Quebec  Act,  identifiesi  them  together.  And,  since 
the  last  mentioned  rivers  can  be  no  other  than  the  tributary  streams  of 
the  Ristigouche,  which,  through  the  Bay  des  Chaleurs,  falls  into  the 
Gulf  of  St.  Lawrence ;  this  also  affords  another  conclusive  proof,  that 
the  term  Atlantic  Ocean,  as  used  in  that  clause  of  the  treaty,  must  ne- 
cessarily have  embraced  the  Gulf  of  St.  Lawrence. 


In 
Jay, 


MgoiiatioM  (/  1782. 


61 


I 


$5. 
Negotiations  of  1782. 

In  the  discussion  respecting  the  intentions  of  the  negotiators  of  the 
treaty  of  1783,  resort  has  been  had  principally  to  the  negotiations  which 
preceded  the  conclusion  of  the  treaty,  to  the  influence  which  former 
boundaries  may  have  had  on  their  deliberations,  and  to  the  knowledge 
which  they  had  of  the  topography  of  the  country. 

The  Congress  of  the  United  States,  on  the  14th  of  August,  1779, 
agreed  to  a  draft  of  instructions  to  the  Commissioner  to  be  appointed  to 
negotiate  a  treaty  of  peace  with  great  Britain.  As  part  of  those  instnic 
tions,  the  boundaries  of  the  United  States  are  declared  to  be  as  follows, 
viz : 

"  These  States  are  bounded  north  by  a  line  to  be  drawn  from  the 
north-west  angle  of  Nova  Scotia,  along  the  Highlands  which  divide  those 
rivers  that  empty  themselves  into  the  River  St.  Lawrence,  from  those 
which  fall  into  the  Atlantic  Ocean,  to  the  north  westernmost  head  of 

Connecticut  River ; and  east,  by  a  line  to 

be  drawn  along  the  middle  of  St.  John  River,  from  its  source  to   its 

mouth  in  the  Bay  of  Fundy If  the 

eastern  boundary  above  described  cannot  be  obtained,  you  are  hereby 
empowered  to  agree,  that  the  same  shall  be  afterwards  adjusted  by  Com- 
missioners, to  be  duly  appointed  for  that  purpose,  according  to  such  line 
as  shall  be  by  them  settled  and  agreed  on,  as  the  boundary  between  that 
part  of  the  State  of  Massachusetts'  Bay,  formerly  called  the  Province  of 
Maine,  and  the  Colony  of  Nova  Scotia,  agreeably  to  their  respective 
rights." 

In  a  report  of  a  Committee  of  Congress,  presented  16th  of  August, 
1782 ;  it  is  confessed  that  the  eastern  part  of  Massachusetts,  "  which 
goes  by  the  nt.me  of  Sagadahock,  cannot  be  proved  to  extend  to  the  River 
St.  John  as  clearly  as  to  that  of  St.  Croix." 

Congress  had,  previously,  by  their  final  instructions  of  the  15th 
of  June,  1781,  modified  those  of  the  14th  of  August,  1779,  and  direct- 
ed their  Ministers  « to  accede  to  no  treaty  of  peace  which  should  not 
secure  the  independence  and  Sovereignty  of  the  Thirteen  States,  or  in- 
consistent with  the  treaties  subsisting  between  them  and  France ;"  upon 
every  other  subject  tying  them  up  by  no  absolute  and  peremptory  direc- 
tions ;  but  still  referring  to  the  former  instructions  as  expressive  of  the 
desires  and  expectations  of  Congress. 

In  conformity  with  those  instructions,  Benjamin  Franklin  and  John 
Jay,  two  of  the  Commissioners  of  the  United  States,  in  the  first  propo- 

6 


)  V 


62 


Intentions  of  the  JVegotiators, 


I  ft 


Pl 


p  ... 


sitions  made  by  them,  and  agreed  upou  on  the  8th  of  October,  1782,  be* 
tween  them  and  Richard  Oswald,  the  British  Commissioner,  (but  to  be 
submitted  to  His  Britannic  Majesty's  consideration,)  defined  die  Boun- 
daries of  the  United  States  in  precise  conformity  with  the  first  part  of  the 
instructions  of  14th  August,  1779. 

But  these  being  objected  to,  the  other  alternative,  as  contained  in -the 
subsequent  part  of  the  same  instructions,  was  substituted,  agreed  to  be> 
fore  the  articles  were  sent  to  London,  and  a  memorandum  to  that  effect 
annexed  to  them  in  the  following  words,  viz :  "  Alteration  to  be  made  in 
the  treaty  respecting  the  Boundaries  of  Nova  Scotia,  viz :  east,  the  true 
line  between  which  and  the  United  States  shall  be  settled  byCommis. 
sioners,  as  soon  as  conveniently  may  be  afler  the  war."  (o) 

Counter-proposals  were  transmitted  from  London,  which  have  not 
been  preserved.  (6)  It  appears  only  that  much  contestation  took  place 
about  the  Boundaries  and  other  articles ;  the  British  contending,  at  first, 
that  Nova  Scotia  should  extend  to  the  River  Kennebec  ;  then  to  Penob- 
scot; and,  at  length,  agreeing  to  the  River  St.  Croix  ;  and  one  of  the 
American  Ministers  at  first  proposing  the  River  St.  John,  but  on  the 
observation  that  St.  Croix  was  the  River  mentioned  in  (c)  the  Charter  of 
Massachusetts'  Bay,  agreeing  with  them  to  adhere  to  the  said  Charter. 

Whatever  may  have  passed  in  conversation,  or  in  the  course  of  the 
negotiations,  it  is  certain  that  the  American  Commissioners  had  first  pro- 
posed the  River  St.  John  as  the  Boundary  ;  that,  for  that  proposal,  they 
substituted  that  of  leaving  the  true  boundary  line  between  Nova  Scotia 
and  the  United  States,  to  be  settled  by  Commissioners,  after  the  peace, 
to  which  the  British  Commissioner  agreed  provisionally ;  that  the  British 
Government  rejected  both  propositions ;  and  that,  it  was  ultimately 
agreed,  instead  of  leaving  the  boundary  in  that  unsettled  situation,  to 
define  it  in  the  treaty  itself. 

The  following  particulars  are  declared,  in  the  British  Statement,  to 
be  collected  from  those  various  instructions,  propositions  and  transac- 
tions. 

1st.  That  the  mouth  of  the  River  St.  John  was,  from  the  first,  speci- 
fically described  as  being  in  the  Bay  of  Fundy,  while  tlie  Bay  of  Fundy 
was  described,  as  distinct  from  the  Atlantic  Ocean. 

2dly.  That  the  north-west  angle  of  Nova  Scotia  was  deliberately  placed 

(a)  See  the  Article  at  large  in  the  Introduction. 

(A)  The  Paper  No.  2,  mentioned  in  Dr.  Franklin's  Letter  of  5th  December,  1782, 
has  not  been  found  in  the  Archives  of  the  United  States,  und  has  not  been  adduced 
in  evidence  by  the  British  Government. 

(c)  The  Rivsr  St.  Croix  is  not  mentioned  in  that  Charter.  The  statement  should 
have  been,  that  it  must  be  inferred  from  tho  Charter,  as  connected  v^ith  other  docu- 
ments, that  tlie  St.  Croix  was  the  Boundary. 


m 


jyegotiations  of  1782. 


ea 


speci- 
■  Fundy 

placed 


per,  1782, 
adduced 

Int  abould 
Iher  doeu- 


« 


^ 


: 


by  the  Americans  themselves  at  the  source  of  the  River  St.  John  ;  which 
source  and  north-west  angle  were  by  them  taken  as  identical. 

3dly.  That  the  highlands  intended  to  divide  the  rivers  falling  into  the 
Atlantic  Ocean  from  those  falling  into  the  St.  Lawrence,  are  (in  the 
American  projet)  described  in  the  very  same  terms  which  they  now  re- 
tain in  the  definite  treaty  of  1788. 

Whence  it  is  inferred,  "  that  the  highlands  designated  in  the  projet, 
being  then  intended  to  divide  the  Androscoggin,  Kennebec,  and  Penob- 
scot F  ivers,  alone,  from  those  falling  into  the  St.  Lawrence,  to  the  exclu- 
sion of  the  St.  John,  the  highlands  so  described  are  still  intended  to  di- 
vide the  same  rivers  ;  and  that  from  those  rivers,  therefore,  the  St.  John 
is  still  intended  to  be  excepted." 

The  place  of  beginning,  or  north-west  angle  of  Nova  Scotia,  is  in  the 
projet,  stated  to  be  at  the  source  of  the  River  St.  John,  and  in  the  trea- 
ty, at  the  intersection  of  the  highlands  with  the  line  drawn  due  north 
from  the  source  of  the  River  St.  Croix.  If  the  source  of  the  River  St. 
John,  contemplated  by  the  projet,  was,  as  asserted  on  the  part  of  Great 
Britain,  the  source  of  the  southernniost  branch  of  that  river,  or  supposing 
it  to  have  been  the  source  of  either,  the  uorth>west,  the  west,  or  the  south 
west  branch  of  the  river,  (thus  called  in  Map  A.)  in  either  case  the  source 
thus  contemplated,  or  north-west  angle  of  Nova  Scotia  of  the  projet,  was 
from  ninety  to  one  hundred  and  twenty  miles  west  of  the  due  north 
line. 

It  cannot  therefore  be  seriously  argued  that,  because  the  north-west 
angle  of  Nova  Scotia  of  the  projet,  and  the  highlands  extending  from 
that  point  to  the  Connecticut,  might  not  divide  any  other  rivers  than  the 
Penobscot  and  Kennebec,  (to  the  exclusion  of  the  St.  John,)  from  the 
rivers  falling  into  the  St.  Lawrence ;  the  north-west  angle  of  Nova 
Scotia  of  the  treaty  (distant  about  one  hundred  miles  from  that  of  the 
projet  according  to  the  British,)  and  the  highlands  beginning  at  that 
point  and  extending  thence  to  the  Connecticut,  must  divide  from  the 
Rivers  falling  into  the  St.  Lawrence,  no  other  rivers  but  the  Penobscot 
and  the  Kennebec,  to  the  exclusion  of  the  St.  John. 

But  the  source  of  the  most  southern  branch  of  the  St.  John  was  not 
known  in  the  year  1782.  The  first  discovery  of  that,  apparently  the  long- 
est branch  of  the  river,  is  due  to  the  explorations  made  in  the  year  1818, 
1820,  under  the  Ghent  Commission.  And,  if  known  in  1782,  it  is  im- 
possible that  it  should  have  been  that  which  the  United  States  had  in  view. 
The  source  contemplated  in  their  projet  was  on  the  highlands,  which  di- 
vide the  rivers  that  empty  themselves  into  the  River  St.  Lawrence  from 
those  which  fall  into  the  Atlantic  Ocean.  And  the  southern  source 
above  described,  lies  more  than  ten  miles  East  of  any  part  of  those  high- 


it  fc 


fi 


Ill 


64 


Intentions  of  the  Negotiatora. 


lii  ^ 


IIP!; 

4]  "M 


I 

I  ill 


i 


I:  ^  1^ 


lands,  and  issues  from  the  highlands  \vhich  divide  the  Penobscot  from 
the  St.  John. . 

On  the  contraiy,  independent  of  another  circumstance  which  will  be 
immediately  adverted  to,  the  place  of  beginning  or  north-west  angle  of 
Nova  Scotia  was,  in  conformity  with  the  terms  of  the  projet,  placed  on 
the  very  highlands  which  are  described  as  dividing  the  St.  Lawrence 
from  the  Atlantic  Rivers,  including  therefore  the  St.  John  among  the 
rivers  falling  into  the  Atlantic.  And,  unless  it  was  proved,  which  can- 
not be  done  and  is  highly  improbable,  that  the  source  contemplated  in 
the  projet  was  the  nearest  possible  to  some  one  source  of  the  Penobscot, 
it  is  evident,  that  the  highlands  of  the  projet  must  for  some  distance  have 
divided  waters  of  the  St.  John  from  those  of  the  St.  Lawrence. 

It  is  further  insisted,  that,  as  the  original  claim  on  the  part  of  the  Uni- 
ted States  did  not  extend  beyond  the  River  St.  John  ;  and  as  a  new  and 
more  contracted  line  was  ultimately  agreed  on  and  substituted  for  that 
first  proposed  line,  which  had  been  rejected  by  Great  Britain ;  it  is  im- 
possible to  suppose  that  that  new  line  should  have  left  to  the  United 
States  a  territory  north  of  the  River  St.  John,  not  included  in  their  first 
claim. 

The  American  claim  alluded  to  was  avowedly  founded  on  the  errone- 
ous supposition,  that  the  chartered  boundaries  of  Massachusetts*  Bay  ex> 
tended  along  the  Sea  coast  eastwardly  to  that  river.  The  claim  appears 
to  have  been  altogether  unfounded.  The  words  of  the  Charter  are  "  the 
Province  of  Maine,  the  territory  called  Accada,  or  Nova  Scotia,  and  all 
that  tract  of  land  lying  between  the  said  territories  of  Nova  Scotia  and 
the  said  Province  of  Maine."  The  only  public  document  which  at  the 
date  of  the  charter,  had  assigned  any  limits  to  Nova  Scotia,  was  the 
grant  to  Sir  William  Alexander,  which  is  bounded  expressly  on  the 
west  by  the  River  St.  Croix. 

Since  the  year  1763,  the  British  government  had  designated  the  River 
St.  Croix  and  a  line  drawn  due  north  from  its  source  to  the  dividing 
highlands,  as  the  western  limit  of  Nova  Scotia.  That  line  wa'i  adopted 
in  the  treaty,  and  substituted  in  lieu  of  the  River  St.  John  proposed  in 
the  projet.  The  effect  was,  to  leave  to  Great  Britain  a  portion  of  terri- 
tory along  the  sea  shore.  West  and  South  of  the  River  St.  John,  which 
was  included,  and  to  leave  within  the  United  States  an  inland  portion 
of  territory  beyond  the  River  St.  John,  which  was  not  included  v/ithin 
the  original  American  claim. 

The  fact,  therefore,  principally  relied  on  in  the  British  Statement,  is, 
that  the  River  St.  John  having  been  decidedly  rejected  by  Great  Britain 
as  a  boundary,  the  line  substituted  must  necessarily  have  been  more  con- 
tracted than  that  which  had  thus  been  rejected.  And  it  is  accordingly 
asserted}  that  the  territory  beyond  the  St.  John,  not  included  within  the 


P': 


^Negotiations  of  1782. 


65 


;rroin 

m  be 
igle  of 
led  on 
vrence 
)g  the 
:h  can- 
ated  ia 
obscot) 
cehaTe 

ii9  Uni- 
tew  and 
for  that 
t  is  im- 
United 
tieir  first 

J  errone- 
Bay  ex- 

I  appears 
are  "  the 
L,  and  all 
:otia  and 
ich  at  the 
[,  was  the 
on  the 

le  Eiver 

dividing 

adopted 

Iposed  in 

of  lerri- 

|n,  %vhich 

|d  portion 

3d  within 

kment,  is, 

\i  Britain 

lore  con- 

cordingly 

nthin  the 


original  American  pretensions,  and  which  the  United  States  now  claim 
under  the  treaty,  contains  700  square  miles  more  than  that  portion  of 
territory  West  of  the  River  St.  John,  originally  claimed  by  them,  and 
which  by  the  treaty,  has  fallen  within  the  dominions  of  Great  Britain. 

In  framing  this  argument,  and  in  the  assertion  itself,  every  conside- 
ration belonging  to  the  subject,  seems  to  have  been  forgotten  or  ne- 
glected. 

The  framers  of  the  treaty  had  not  the  benefit  of  the  surveys  and  maps 
annexed  to  the  proceedings  of  the  Commissioners,  from  which  the  com- 
parative contents  of  the  two  territories  in  question  have  been  calculated 
in  the  manner  mentioned  in  the  British  Statement :  and  they  could  have 
had  no  other  data  for  such  calculation  than  the  maps  existing  at  that 
time. 

Supposing  Mitchell's  Map  to  have  been  that  on  which  they  relied,  the 
most  south-westerly  source  of  the  River  St.  John,  which  takes  its  rise 
in  the  dividing  highlands,  and  that  which  gives  the  result  most  favor- 
able to  the  British  mode  of  calculating,  is  made,  in  that  map,  to  termi- 
nate in  a  small  lake,  the  western  extremity  of  which  is  in  about  69o  18' 
west  longitude,  46^  38'  north  latitude,  and  about  thirty-four  miles  south- 
east from  Quebec,  {d) 

It  will  be  easily  verified,  making  the  calculation  according  to  Mitch- 
ell's Map,  and  taking  that  south-westerly  source  to  have  been  the  north- 
west angle  of  Nova  Scotia  contemplated  in  the  first  instructions  of 
Congress,  that  the  territory  north  of  the  St.  John,  not  included  within 
the  original  American  claim,  instead  of  containing  seven  hundred 
square  miles  more,  is  considerably  less  in  extent  than  that  portion  lying 
west  of  the  said  river,  which  was  claimed  by  the  United  States,  accord- 
ding  to  those  first  instructions,  and  which  by  the  treaty  has  fallen  with- 
in the  dominions  of  Great  Britain.  The  British  argument,  being  sole- 
ly grounded  on  the  contrary  supposition,  is  therefore  destitute  of  any 
foundation. 

Yet  this  calculation  is  the  most  favorable  to  the  British  argument  that 
could  have  been  selected.  It  is  utterly  impossible  that  either  the  most 
southern,  and  then  unknown,  source  of  the  River  St.  John,  or  even 
Mitchell's  westernmost  source  of  that  river,  could  have  been  that  which 
was  contemplated  in  the  American  projet,  as  the  north-west  angle  of 
Nova  Scotia.  It  was  there  proposed  that  the  River  St.  John,  from  its 
source  to  its  mouth,  should  be  the  boundary  between  the  United  States 
and  Nova  Scotia,  leaving  within  the  United  States  all  the  territory  on 

(rf)  Thi»  must  have  been  the  branch  designated  in  Map  A,  as  the  west  branch  of  the 
St.  John,  as  they  nearly  agree  both  in  latitude  and  in  the  distance  and  bearing  from 
Quebec.  The  difference  of  nearly  one  degree  in  longitude  arises  from  an  error,  which 
pervades  the  whole  of  Mitchell's  Map. 

6» 


1^?, 


66 


Intentions  of  the  Negotiators. 


iv 


'ill*!  i    :  -  ',  :i; 


ll'!    M' 


liii  lijI'^S 


the  right  bank,  and  giving  to  Nova  Scotia  the  whole  country  on  the  lefl 
bank  of  the  river,  from  its  source  to  its  mouth.  It  will  appear  at  once, 
from  an  inspection  of  the  map  A,  and  of  Mitchell's  Map,  that,  from 
oriher  of  those  sources  to  the  place  where  the  due  north  line  intersects 
the  St.  John,  the  whole  country  on  the  south-east  side  of  the  river  would 
h'"'e  been  thus  within  the  boundaries  of  the  United  States,  and  that  on 
the  north-wek.  side  within  those  of  Nova  Scotia.  Whatever  breadth 
miig;ht  be  allotted  to  that  Province  in  that  quarter,  it  is  evident  that  its 
north-west  angle  must  have  been  at  some  place  bearing  north-west  from 
the  said  point  of  intersection,  and  far  north,  therefore,  of  either  of  those 
sources  ;  the  westernmost  being*,  on  that  supposition,  the  western,  and 
the  southernmost,  nearly  the  south-west,  instead  of  the  north-west  angle 
of  Nova  Scotia. 

It  must  be  further  observed  that,  in  the  rejected  article  first  proposed 
by  the  United  States,  the  said  States  are  declared  to  be  bounded,  ecwf, 
by  a  line  to  be  drawn  along  the  middle  of  the  St.  John  River  from  its 
source  to  its  mouth  in  the  Bay  of  Fundy.  And  it  will  be  perceived  by 
reference  to  Mitchell's  Map,  that  the  River  St  .Tohn,  from  its  western- 
most source,  as  designated  in  that  map,  to  th*  north  line,  and  even 
for  some  distance  ^i^y^nd  it,  would  have  been,  according  to  the  projet, 
the  northern,  instead  of  the  eastern  boundary  of  the  United  States. 
Whilst  on  the  contrary,  if  the  source  of  the  St.  John,  designated  in 
Mitchell's  Map  by  the  name  of  Nepissigouche  was,  as  it  is  believed,  the 
source  intended  by  Congress  and  by  the  American  negotiators,,  the 
River  St.  John  from  its  source  to  its  mouth,  would  have  been  with  great 
propriety,  described  as  the  eastern  boundary  of  the  Unites  States.  The 
only  argument  against  that  otherwise  most  probable  supposition,  is  that 
the  branch  of  which  the  source  is  Mitchell's  westernmost  source,  is  in 
his  map  called  the  River  St.  John. 

The  spot  on  Mitchell's  Map,  called  Nepissigouche,  and  his  adjacent 
Lake  Medusa  (corrupted  from  Madawaska,)  are  proved  to  be  the  Temis- 
conata  Lake  and  Portage,  from  their  connection  with  the  correspond- 
ing  Pistole  and  Wolves  Rivers,  which  empty  into  the  St.  Lawrence. 

The  inference  drawn  in  the  British  Statement  will  appear  still  more 
extraordinary,  if  the  comparative  value,  at  the  date  of  the  treaty,  of  the 
tracts  of  country  in  question,  is  taken  in  consideration.  Even  now, 
when,  after  the  lapse  of  more  than  forty  years,  the  inland  country  has 
with  the  great  incre£ise  of  population,  and  approximation  of  settle- 
ments, acquired  a  proportionate  value  and  importance ;  its  soil 
would,  acre  for  acre,  be  considered  as  far  less  valuable  than  that  of  a 
territory,  the  greater  part  of  which  bordej'ii  on  the  sea  coast  and  tide 
water.  But,  in  the  year  1782,  when  the  attention  of  both  Powers  had 
been  and  was  so  entirely  turned  to  the  country  on  the  sea-shore,  along 


^egotialions  of  1782. 


6T 


le  left 
once, 
,  from 
3Tsects 
would 
that  on 
breadth 
that  its 
st  from 
if  those 
rn,  and 
8t  angle 

iroposed 
ed,  taat, 
from  its 
eived  by 
western- 
ed even 
le  projet, 
1    States. 
'Dated  in 
eved,  the 
tors,,  the 
ith  great 
The 
is  that 


JS 


rce,  IS  in 

adjacent 
I  Temis- 
respond- 
rence. 
till  more 
ty,  of  the 
ren  now, 
untry  has 
t>f  settle- 
its    soil 
tiat  of  a 
I  and  tide 
irers  had 
Ire,  along 


which  alone  there  were  any  settlements  at  the  time,  is  qoite  preposter- 
ous to  suppose  that  believing  the  two  tracts  to  be  nearly  equal  in  extent, 
their  value  could  have  been,  in  the  opinion  of  either  party,  even  a  subject 
of  comparison. 

It  is  insisted  that,  independent  of  the  comparative  value  of  the  two 
tracts  of  country,  it  cannot  be  supposed  that,  after  having  rejected  the 
proposal  to  make  the  River  St.  John  the  boundary,  and  after  having 
yielded  her  claim  to  the  territory  between  the  St.  Croix  and  the  Penobscot, 
Great  Britain  could  have  consented  to  give  up  tfie  communication  be- 
tween her  two  provinces,  Canada  and  Nova  Scotia  now  New  Brunswick. 

It  must  be  recollected,  that  the  northern  boundary,  in  that  quarter  of 
the  United  States,  as  described  by  the  treaty  of  1783,  is  precisely  the 
same  and  described  in  the  same  words,  as  the  southern  boundary  as- 
signed, by  the  proclamation  of  1763,  to  the  government  of  Quebec,  or 
Canada.  And  it  follows,  that  the  intentions  must  be  found,  not  in  the 
relative  situation  of  the  contracting  Powers,  in  the  year  1783,  when  the 
ancient  line  was  confirmed,  but  in  the  object  which  the  British  Govern- 
ment must  have  had  in  view,  in  the  year  1763,  when  the  southern  boun- 
dary of  the  Province  of  Quebec,  such  as  it  was  confirmed  by  the  treaty 
of  1783,  such  as  it  still  continues  to  be  to  this  day,  was  first  established. 

The  sole  object  of  the  Proclamation  of  1763,  is,  in  that  respect,  what 
it  professes  to  be,  viz  :  to  provide  generally  for  the  Government  of  the 
valuable  acquisitions  secured  to  Great  Britain  by  the  late  treaty  with 
France,  and  specially  for  that  of  Canada,  by  assigning  proper  bounda- 
ries to  the  Province  of  Quebec,  which  is  erected  with  that  view.  No- 
thing more  was  necessary  for  that  purpose  than  to  include,  within  those 
limits,  the  French  inhabitants  known  to  have  been,  till  the  conquest  of 
Canada,  under  its  Government.  It  was  sufficient,  in  order  to  effect  that 
object,  to  include  within  the  new  Province  the  whole  Country  below 
Quebec,  and  nothing  more  than  the  country  which  is  watered  by  the 
tributary  streams  of  the  River  St.  Lawrence,  or  what  Geographers  call 
the  basin  of  that  river.  The  Ridge,  or  by  whatever  other  name  called, 
in  which  those  tributary  streams  have  their  sources,  was  not  only  a 
natural,  but  the  most  natural  Boundary  which  presented  itself.  By 
deviating  from  its  eastern  extremity,  so  as  to  make  the  Bay  des  Chaleurs 
the  Boundary  in  that  quarter  and  thereby  embrace  the  Gaspe  settlements, 
all  the  French  inhabitants  were  included.  This  was  the  only  purpose 
that  could  then  have  been  intended.  The  communication  between 
Quebec  and  Nova  Scotia,  by  the  means  of  the  River  St.  John,  was 
wholly  foreign  to  the  determination  of  the  Boundaries  of  the  new  Gov- 
ernment, since,  in  the  year  1763,  when  Massachusetts  was  part  of  the 
British  Empire,  it  was  quite  immaterial  to  Great  Britain,  through  which 
of  her  Provinces  such  communication  should  pass. 


68 


Intentions  of  the  Negotiatora. 


M 


■u    i 


The  aeparate  and  secret  article,  annexed  to  the  provisional  articles  of 
November,  1782,  supplies  another  and  satisfactory  answer  to  all  the  ar- 
guments derived  from  the  pretended  impossibility,  that  Great  Britain 
ever  could  have  acceded  to  the  north-eastern  boundary,  as  now  claimed 

by  the  United  States. 

It  will  be  remembered  that  it  was  provided  by  that  article  that,  in  case 
Great  Britain,  at  the  conclusion  of  the  war,  should  recover  or  be  put  in 
possession  of  West  Florida,  the  line  of  north  boundary  between  this  said 
province  and  the  United  States  should  be  a  line,  drawn  from  the  mouth 
of  the  river  Yassous,  where  it  unites  with  the  Mississippi,  due  East  to  the 
River  Apalachicola. 

This  article  was  extremely  disadvantageous  to  America,  since  it  would 
have  removed  her  southern  boundary,  on  a  length  of  about  830  miles, 
near  one  hundred  miles,  further  north,  and  yielded  to  Great  Britain  a 
territory  containing  more  than  twenty  millions  of  acres.  It  must  have 
proved  particularly  offensive  to  Spain  :  it  was  acceded  to  with  great  re- 
luctance  by  the  American  Commissioners,  and,  contrary  to  their  instruc 
tions,  kept  secret  from  the  French  Government.  The  principal  rea- 
son which  induced  them  to  agree  to  it,  is  stated  in  their  letter  to  their 
government  of  July,  1783,  in  which  they  say: 

"  Mr.  Oswald  was  desirous  to  cover  as  much  of  the  eastern  shores  of 
the  Mi':3issippi  with  British  claims  as  possible,  and  for  this  purpose  we 
were  told  a  great  deal  about  the  ancient  bounds  of  Canada  and  (Louisi- 
ana, &c.,  &c.,  &c.  The  British  court,  which  had  probably  not  yet 
adopted  the  idea  of  relinquishing  the  Floridas,  seemed  desirous  of  an- 
nexing as  much  territory  to  them  as  possible,  even  up  to  the  mouth  of 
the  Ohio.  Mr.  Oswald  adhered  strongly  to  that  object,  as  well  to  ren- 
der the  British  Countries  there  of  sufficient  extent  to  be  (as  he  express- 
ed it)  worth  keeping  and  protecting,  as  to  afford  a  convenient  retreat  to 
the  Tories,  for  whom  it  would  be  difficult  otherwise  to  provide.  And 
among  other  arguments,  he  finally  urged  his  being  willing  to  yield  to 
cur  demand  to  the  east,  north  and  west,  as  a  further  reason  for  our  grati. 
fying  him  on  the  point  in  question." 

Another  singular  argument  has  been  adduced,  in  order  to  sustain  the 
claim  of  Great  Britain  to  the  whole  disputed  territory. 

It  is  asserted  in  the  first  British  Statement,  that  the  main  object  of  the 
treaty  was  to  trace  this  part  of  the  northern  frontier  of  the  United  States, 
in  such  a  manner  as  to  thro^/  certain  rivers  entirely  into  their  territory ; 
that  it  was  evidently  determined,  to  divide  from  each  other,  at  their 
sources,  the  several  great  rivers  assigned  to  each  power  :  that  therefore 
those  rivers  were  not  to  be  intersected  by  the  line  of  boundary  in  any 
part  of  their  course :  that  throughout  the  discussions  relating  to  the 
limits  of  the  United  States  in  that  quarter,  both  parties  clearly  directed 


JS'egotiationa  of  1782. 


stain  the 

^ct  of  the 
States, 

Brritory ; 

jat  their 

Itherefore 
in  anv 
to  the 

I  directed 


their  attention  principally  to  rivers,  and  moreover,  to  rivers  in  their 
whole  extent. 

Thii,  it  is  said,  appears  distinctly  from  the  proceedings  of  the  old 
Congress  and  from  the  negotiations  of  1782,  Nothing  n\ore  appears, 
in  that  respect,  from  those  proceedings  and  negotiations,  than  the  re- 
jected proposal,  to  make  the  River  St.  John  tlie  boundary.  Not  the 
slightest  proof  is  adduced  that  the  rejection  implied  a  claim  to  the  whole 
basin  of  the  river.  And  the  intentions  of  the  parties  cannot  be  shown 
by  a  gratuitous  supposition. 

In  order  to  sustain  the  assertion,  that  it  was  the  intention  of  the  nego* 
tiators,  that  the  Rivers  in  their  whole  extent  should  be  assigned  to  each 
Power  respective1y,'and  therefore  that  they  should  not  be  intersected  by  any 
of  the  boundary  lines,  it  is  said  in  the  British  Statement,  that  the  silence 
which  the  negotiators  have  kept  with  regard  to  the  intersection  of  the 
River  St.  John  is  very  difficult,  if  not  impossible,  to  explain  ;  that,  if  it 
had  been  intended,  that  the  due  north  line  should  cross  the  River  St. 
John,  there  can  be  no  doubt  that  such  a  peculiarity  would  have  been 
specifically  adverted  to. 

When  making  that  objection,  it  mast  have  been  forgotten,  that  both 
the  direction  and  length  of  a  straight  line  are  determined  by  the 
two  points  at  its  two  extremities ;  and  that,  in  this  instance,  the  point 
of  departure,  the  direction  of  the  line  and  the  other  line  at  which  it  ter- 
minates are  all  given,  and  determine  the  length  of  the  due  north  line 
with  such  precision,  as  to  render  any  further  description  superfluous. 
Although  it  was  equally  well  known,  that  the  boundary  along  the  paral- 
lel of  the  46th  degree  of  north  latitude  would  cross  Lake  Champlain, 
and  that  the  southern  boundary  would  also  cross  the  Mobile,  those  pecu- 
liarities are  not  specifically  adverted  to. 

An  appeal  is  then  made  to  the  preamble  of  the  Treaty,  in  the  follow- 
ing words :  The  preamble  to  the  Preliminary  Articles  of  1782  says, 
that  the  provisions  of  that  Treaty  are  founded  on  the  basis  of  '<  recipro- 
cal advantages  "  and  "  mutual  convenience " — on  the  principles  of 
"liberal  equity  and  reciprocrity," — with  the  express  design  of  "  exclu- 
ding partial  advantages,  those  seeds  of  discord ;"  and  the  introduction 
to  the  very  article  respecting  boundaries  declares,  in  equally  express 
terms,  that  those  boundaries  are  adjusted  <'  with  a  view  to  prevent  further 
disputes." 

"Is  it  credible  that,  in  the  very  face  of  theso  earnest  declarations,  the 
framers  of  the  treaty  should  have  adopted  a  Line  of  Boundary,  which 
in  the  first  place,  while  it  did  really  secure  to  the  United  States,  the 
whole  of  each  river  emptying  within  their  territory,  would  deprive  Great 
Britain  of  a  full  half  of  one,  and  a  portion  of  another,  of  the  largest 
rivers  emptying  within  hers  ?  and,  on  the  other  hand,  would  give  to 


id 


•ii 


f        -'.^r 


70 


Intentions  of  the  Negotiators. 


m 


ri  '' 


Great  Britain  the  lower  half  and  entire  command  of  the  navigation  of 
the  largest  river  in  the  whole  country,  (the  St.  John)  by  which  alone 
the  whole  timber  and  produce  of  the  territory  on  the  upper  half  of  the 
same  river  could  be  conveyed  to  the  sea,  while  that  upper  half  was  left 
to  the  United  States  1" 

It  ii  obvious  from  the  tenor  of  the  Article,  that  the  disputes  on  the 
subject  of  boundaries,  intended  to  be  prevented,  were  those  which  might 
have  arisen,  not  from  their  not  being  every  where  equally  convenient  to 
both  parties,  but  from  their  uncertainty,  had  they  been  left  subject  to  the 
doubtful  interpretation  of  the  indefinite  term  "  territorial  rights,"  instead 
of  being  specially  and  precisely  described. 

The  proper  answer,  however,  to  every  inference  attempted  to  be  drawn 
tVom  such  general  expressions,  used  in  a  Preamble,  or  as  introductory, 
is,  that  their  true  intent  can  only  be  found  in  the  actual  conditions  of 
the  treaty,  instead  of  deducing  the  meaning  of  those  conditions  from 
conciliatory  expressions  of  vague  import,  which  are  usual  and  proper 
in  most  treaties  of  peace. 

The  general  assertion,  respecting  the  intentions  of  the  framers  of 
the  Treaty,  is  not  only  unsupported  by  proofs,  but  it  is  disproved  by  the 
decisive  fact,  that  it  was  not  adhered  to,  with  respect  to  any  other  part 
of  the  Boundary. 

From  the  Connecticut  River  to  St.  Regis,  on  the  River  St.  Lawrence, 
the  Boundary  is  a  due  west  line,  along  the  45th  parallel  of  North  latitude 
which  crosses  Lake  Champlain,  and  several  othtr  tributary  streams  of 
the  River  St.  Lawrence,  leaving  within  the  United  ^States,  the  upper 
branches  and  the  sources,  and  within  the  dominions  of  Great  Britain, 
the  mouths  and  lower  portion  of  those  streams. 

From  St.  Regis  to  the  western  extremity  of  Lake  Superior,  all  the 
rivers  from  the  south,  which  fall  into  the  River  St.  Lawrence,  or  into 
the  great  lakes  with  which  it  communicates,  are  within  the  boundaries 
of  the  United  States :  Whilst  all  the  rivers  which,  flowing  from  the 
south,  fall  into  the  River  St.  Lawrence  below  St.  Regis,  and  all  the 
riv'  3  without  exception,  which  flow  from  the  north,  either  into  the  great 
lakes,  or  into  that  river,  are,  together  with  the  mouth  and  sole  outlet  into 
the  Sea  of  that  immense  body  of  waters,  assigned  to  Great  Britain. 

All  the  inconveniences,  with  respect  to  navigation,  or  to  a  division, 
between  the  two  Powers,  of  a  country  lying  on  the  banks  and  waters 
of  the  same  Rivef,  which  are  ascribed,  by  Great  Britain,  to  the  treaty 
boundary  line,  so  far  as  it  affects  the  River  St.  John,  apply,  with  equal 
and  greater  force,  to  the  River  Si.  Lawrence,  and  to  the  extensive  coun- 
tries situated  on  its  waters.  And,  on  the  principle  she  assumes,  sho 
might,  with  equal  consistency,  justice,  and  adherence  to  the  terms  of 
the  treaty,  claim  all  the  territory,  on  the  south  of  the  River  St.  Law- 


iiiiii! 


J^egoiiationa  of  1782. 


71 


■I"  I 


a  of 
klone 
f  the 
IS  left 

n  the 
might 
entto 
to  the 
n  stead 

I  drawB 
uctory, 
ions  of 
is  from 
proper 

mer«  of 
d  by  the 
her  part 

iwrence, 
I  latitude 
reams  of 

e  upper 

Britain. 

\,  all  the 
or  into 
lundaries 
Ifrom  the 
all  the 
[the  great 
atlet  into 
Itain. 
[division, 
waters 
^e  treaty 
[ith  equal 
Ive  coun« 
les,  she 
Iterms  of 
3t.  Law- 


rence, and  of  its  great  reservoirs,  which  belongs  to  the  United  States, 
as  sho  now  does  the  upper  half  of  the  basin  of  the  River  St.  John, 
which  lies  west  of  the  line  drawn  due  north  from  the  source  of  the  River 
St.  Croix. 

In  the  same  manner  the  Southern  boundary,  from  the  banks  of  the 
Mississippi,  extends  to  the  source  of  the  St.  Mary's  River,  crossing,  not 
far  from  their  mouths,  the  great  Rivers  Mobile  and  Apalachicola,  and 
numerous  other  considerable  streams,  leaving  the  mouths  of  all  those 
rivers,  together  with  a  narrow  slip  along  the  sea  coast,  without  the  Boun- 
daries of  the  United  States  ;  whilst  the  whole  of  the  upper,  or  more  than 
nine-tenths  of  the  country  watered  by  those  rivers  and  their  tributary 
streams,  is,  by  the  treaty,  declared  to  be  within  tu^ir  dominions. 

The  Rivers  St.  Croix,  and  St.  Mary,  from  their  mouths  to  their 
sources  ;  the  River  Connecticut,  from  its  source  to  the  45th  degree  of 
North  latitude ;  the  Mississippi,  from  the  latitude  of  the  Lake  of  the 
Woods  to  that  of  the  31st  parallel ;  the  water  communication  between 
7-iake  Superior  and  that  of  the  Woods ;  that  Lake ;  a  due  West  line  from 
its  North-western  extremity  to  the  Mississippi,  and  finally  the  due  North 
line  from  the  source  of  the  River  St.  Croix  to  the  Highlands,  complete 
the  description  of  the  boundaries  prescribed  by  the  treaty. 

Not  a  single  portion  of  the  Boundary  is  described  by  the  treaty,  as 
dividing  or  separating  from  each  other  the  rivers  flowing  in  different  di- 
rections ;  that  alone  excepted,  which  extends  from  the  North-west  angle 
of  Nova  Scotia  to  the  North-westernmost  head  of  Connecticut  River. 
And  the  United  States  contend,  that,  through  its  whole  extent  between 
those  two  points,  and  in  no  other  part  of  it,  the  Boundary  line  must  di* 
vide  or  separate  the  rivers  as  described  in  the  treaty. 

When  (irreat  Britain  insists,  that  the  inteation  of  the  negotiators  was 
to  divide  the  rivers,  so  as  to  assign  to  each  Power,  respectively,  the  whole 
country  situated  on  rivers,  the  mouths  of  which  were  in  its  territory ;  it 
is  for  the  purpose  of  drawing  the  extraordinary  inference,  that  the  only 
portion  of  the  Boundary  which  is  expressly  designated  by  the  treaty  as 
dividing,  was  not  intended,  to  divide  or  separate  the  rivers  that  empty 
themselves  into  the  River  St.  Lawrence,  from  those  that  fall  into  the  At. 
lantic  Ocean. 

Let  it  be  further  observed,  that,  with  respect  to  the  waters  of  the  River 
St.  John,  the  British  claim  is  now  asserted  in  direct  contradiction  to  the 
suggested  intention.  It  was  known  to  the  framers  of  the  treaty,  as  will 
appear  by  Mitchell's  Map,  that  the  due  north  line  must  necessarily  cross 
the  Western  tributary  streams  of  that  river.  The  line  does  accordingly 
cross  some  of  its  waters,  within  two  miles  of  the  source  of  tlie  St.  Croix, 
and  before  it  reaches  Mars  Hill,  no  less  than  three  of  those  tributary 
streams,  viz  :  Bull's  Branch,  the  River  MeduxncUcag,  and  the  Presqu 


■i  M 


W 

If 


k-j,'ii 


72 


Intentions  of  the  Negotiators. 


isle  River.  The  country  on  the  West  and  along  thirty  eight  miles  of 
the  due  !North  line,  watered  by  those  three  rivers,  is  acknawledged  by 
Great  Britain  to  be  within  the  territories  of  the  United  States,  although 
the  mouth  of  that  river  is  within  her  dominions. 


Mi 


Wi 


1 1', 
I  J*  1 


§  6. 
Former  Boundaries. 

The  United  States  have,  in  reference  only  to  the  intentions  of  the  ne- 
gotiators, appealed  to  the  coincidence  of  the  boundaries  of  Massachusetts 
according  to  its  colonial  charter,  with  those  determined  by  the  treaty. 

His  Britannic  Majesty,  by  the  first  article  of  the  treaty,  acknowledged 
the  independence  of  the  thirteen  United  States,  designating  each  by  i's 
colonial  name ;  (Massachusetts'  Bay  and  not  Massachusetts,  Rhode 
Island  and  Providence  Plantations  instead  of  Rhode  Island,)  and  relin- 
quished all  claims  to  the  territorial  rights  of  the  same,  and  every  part 
thereof."  The  principle,  or  basis,  on  which  the  Parties  had  agreed  to 
treat,  is  clearly  expressed :  the  intention  was,  that  each  state  should  retain 
the  territory  to  which,  as  a  colony,  it  had  been  entitled. 

But  it  is  provided  in  express  terms  by  tlie  second  article,  that  in  order 
*'  that  all  disputes  which  might  arise  in  future  on  the  subject  of  the  boun- 
daries of  the  said  Uiited  States  may  be  prevented,  it  is  hereby  agreed 
and  declared,  that  the  following  are  and  shall  be  their  boundaries,  viz  ;" 
and  the  description  of  the  boundaries  immediately  follows.  There  can 
be  no  doubt  that,  though  the  basis  or  intention  was  indicated  in  the  first 
article,  the  determination  of  the  boundaries  in  the  second  article  is  con- 
clusive and  binding  on  both  Parties.  Whether  those  boundaries  em- 
braced more  or  less  than  had  been  contained  within  the  chartered  limite 
of  Massachusetts'  Bay,  no  appeal  can  be  made  from  the  terms  of  the  se- 
cond article  to  the  general  intention  declared  in  the  first,  unless  a  doubt 
should  arise  respecting  the  true  meaning  of  those  terms. 

The  United  States  deny,  that  theie  can  be  any  doubt  in  that  respect ; 
they  rest  their  claim  on  the  terms  of  the  treaty  ;  and  they  resort  to  the 
intentions  clearly  declared  in  the  first  article,  only  in  reference  to  ar- 
guments attempted  to  be  drawn  from  presumed  probabilities  and  the  sup- 
posed intentions  of  the  negotiators. 

The  public  acts,  by  virtue  of  which  the  Colony  of  Massachusetts'  Bay 
claimed  the  disputed  territory  embraced,  within  the  boundaries  establish- 
ed by  the  treaty,  have  been  stated  at  large  in  the  introduction. 

Nova  Scotia  and  all  that  tract  of  land,  lying  between  Nova  Scotia 


miles  of 
Iged  by 
silthough 


•f  the  ne- 
achusetts 
treaty, 
owledged 
ch  by  i*8 
ta,  Rhode 
ind  relin- 
very  part 
agreed  to 
uld  retain 

t  in  order 
the  boun- 
ty agreed 
ies,  viz  ;" 
There  can 
n  the  first 
;le  is  con- 
aries  em- 
red  liraitB 
of  the  se- 
39  a  doubt 

t  respect ; 
3ort  to  the 
ce  to  ar- 
d  the  sup- 
setts'  Bay 
establish- 

)va  Scotia 


Former  Boundaries. 


and  the  River  Kennebec,  which  was  the  eastern  boundary  of  tthe  old 
Province  of  Maine,  were  annexed,  by  the  charter  of  1691,  to  the  Colony 
of  Massachusetts'  Bay  ;  reserving  to  the  Crown  the  right  of  approving 
or  rejecting  grants  of  land  by  the  Provincial  government,  of  any  lands 
lying  or  extending  from  the  River  of  Sagadahock  (Kennebec)  to  the 
Gulf  of  St.  Lawrence  and  Canada  Rivers,  and  to  the  main  sea  north- 
ward and  eastward,   (e) 

All  the  French  possessions  before  the  war  having  been  restored  to 
France  by  the  treaty  of  Ryswick  of  1697,  Nova  Scotia,  which  was  clear- 
ly embraced  in  the  restitution,  was  severed  from  the  British  dominions  ; 
and  the  clause  of  the  charter,  which  annexed  thai  territory  to  Massachu- 
set'.s,  was  virtually  repealed,  and  became  a  nullity.  The  understanding  of 
the  British  Government  of  the  extent  of  that  restitution,  will  be  found  in 
the  following  sentence  of  a  letter  from  the  Lords  of  the  Board  of  Trade, 
datefd  3(ith  of  October,  1700,  to  the  Earl  of  Bellamont,  the  Governor  of 
Massachusetts,  viz  :   "  As  to  the  boundaries,  we  have  always  in.<)isted, 
and  shall  insist  upon  the  English  right,  aa  far  as;  the  River  S*.  Croix." 
France,  by  the  Treaty  of  Utrecht  of  1713,  ceded  to  Great  Britain 
No\a  Scotia  or  Acadia,  with  its  ancient  boundaries  ;   but  that  province, 
instead  of  being  again  annexed  to  Massachusetts'  Bay,  was  erected  by 
Great  Britain  into  a  separate  government,  without  any  description  of 
its 'imits  till  the  year  1763.     Subsequent  to  the  treaty  of  Utrecht,  the 
British  O'  vemme  t,  several  times,  called  in  question  the  title  of  Massa. 
cbusetts  to  the  territory  between  Nova  Scotia  and  ihe  River  Kenn»ibec. 
The  law  otficers  of  the  Crown,  to  whom  the  case  had  been  referred, 
gave  in  the  year  173i,  a  decided  opinion  in  favor  of  Massachusetts, 
whu;h  appears  to  have  been  confirmed  by  an  order  in  council.     Yet,  in 
the  year  1763,  when  the  limits  of  Nova  Scotia  were  determined  by  an 
act  of  the  Crown,  the  following  words  were  added  to  the  commission  of 
the  Governor,  "  although  our  said  province  has  anciently  extended  and 
does  of  right  extend  as  far  as  the  River  Pentagoet  or  Penobscot." 
This  reservation  was  not  inserted,  since  the  year  1765,  in  the  subse- 
quent commissions  of  the  Governors  of  that  Province,     In  the  same 
year,  1763,  the  Board  of  Trade,  in  a  letter  to  Governor  Bernard  of  Mas- 
sachusetts, and  in  reference  to  a  grant  made  to  him  by  that  Province,  of 
an  island  lying  east  of  the  River  Penobscot,  again   expressed  a  doubt, 
how  far  all  future  consideration  of  the  right  of  Massachusetts  wns  pre- 
cluded by  the  order  of  Council,  grounded  upon  ttie  opinion  of  the  attor- 
ney and  solicitor-generwl   in  1731.     And  when  that  grant  was,  in  the 
year  1771,  confirmed  by  the  Crown,  it  was  with  the  following  proviso, 
viz :  ''Provided  uevcktheless, that  his  Majesty's  approbation  and  confir- 


mi 


(ff)  By  reference  to  the  cliarter,  it  will  be  seen  ihut  the  boundary  of  the  Provjnca 
towards  the  Sea  is  designated  as  *'  the  Athmtic  or  vjestern  iie&  or  Ocean." 


'I 

III 
liil 

(HI 


74 


Intentions  of  the  JVegotialors. 


ination  of  the  said  Grant  shall  not  have  the  effect  to  prejudice  the  right 
of  the  Crown,  in  and  over  the  said  territory  of  Sagadahock,  both  as  to 
the  dominion  and  the  property  of  the  soil." 

Thus  far,  the  general  claim  of  Massachusetts  to  the  territory  between 
Kennebec  and  Nova  Scotia,  though  called  in  question  by  the  Crown,  as  far 
as  the  Kennebec,  or  at  least  the  Penobscot,  stood  on  unshaken,  legal 
grounds,  and  could  not  have  been  disturbed,  according  to  the  aforesaid 
opinion  of  the  Law  Officers  of  the  Crown,  otherwise  than  by  legal  pro- 
ceedings, which  were  never  attempted.  But  doubts  might  have  been 
suggested,  before  the  year  1763,  respecting  the  limits  of  the  Province 
of  Nova  Scotia. 

Before  that  year,  the  only  public  act  emanating  from  the  British  Go- 
vernment, which  designated  the  limits  of  Nova  Scotia,  was  the  Grant  of 
1621  to  Sir  William  Alexander.  The  western  boundary  of  the  grant  is, 
the  River  St.  Croix,  from  its  mouth  in  the  Bay  of  Fundy,  to  its  most  re- 
mote western  spring  or  source ;  from  thence,  a  direct  Hue  running  to- 
wards the  north,  to  the  nearest  road,  (navium  stationem)  river,  or  spring 
emptying  itself  into  the  great  River  de  Canada  ;  and  from  thence  pro- 
ceeding eastwardly  along  the  sea  shores  of  the  said  River  de  Canada,  &c. 
It  had  not  yet  been  ascertained  which  was  the  river  intended  by  that  call- 
ed St.  Croix ;  and  the  line  to  be  drawn  from  the  western  source  of  that 
river  to  the  River  St  Lawrence,  was  expressed  in  vague  terms. 

It  was  suggested  in  the  second  British   Statement,  that  the  words 
of  the  Grant  might  n    \  to  a  line,  drawn  from  the  source  of  the  St. 
Croix  to  the  head  wat(  s  of  the  River  Chandiere.     The  obvious  an- 
swer to  that  construction  of  the  terms  of  the  Grant  is,  that  such  a  line 
would  have  been  towards  the  west,  and  not  towards  the  north.     But 
without  insisting  on  that  suggestion,  it  is  asserted,  that  the  line,  drawn 
towards  the  north  to  the  nearest  part  of  the  St.  Lawrence,  would  strike 
that  river,  far  to  the  west  of  that  point  where  a  due  north  line  would  inter- 
sect  it.   This  is  true  ;  but  the  British  Government  had  never  maintained, 
declared,  or  suggested,  that  the  line  ought,  according  to  the  terras  of  the 
Grant,  to  be  run  in  that  direction.     On  the  contrary,  when,  for  the  first 
time  since  the  date  of  Sir  William  Alexander's  Grant,  the  British  Gov- 
ernment defined  the  limits  of  Nova,  Scotia  in  the  commissions  of  the 
Governors  of  that  Province  in  the  year  1763,  the  line  was  described,  as 
running  due  north  from  the  source  of  the  River  St.  Croix,  and  without 
designating,  from  which  of  the  sources  of  the  river  the  line  was  to  run. 
Even  prior  to  that  date,  the  line   is  represented  as  a  due  north  line,  in 
Mitchell's  Map,  which  was  undertaken  with  the  approbation  of  the  Board 
of  Trade,  and  received  its  sanction,  under  the  signature  of  John  Pow- 
nall,  its  secretary. 

Had  it  been  otherwise,  had  the  British  Government  maintained,  prior 


Former  Boundaries. 


76 


Id,  prior 


to  the  treaty  of  1783,  that  the  line  in  question  ought,  in  conformity 
with  the  grant,  to  be  a  north-west  line ;  and  admitting  that  the  Crown 
had  the  right  to  decide  that  question  ;  the  effect  would  have  been  to  cut 
off  from  Massachusetts  the  north-eastern  portion  of  the  disputed  terri- 
tory. But  the  northeast  angle  of  that  Province  would  still  have  been  on 
the  banks  of  the  River  St.  Lawrence. 

Nothing  of  the  kind  had,  however,  been  done  or  even  suggested  by 
the  British  Government.  It  further  appears,  by  the  letter  from  Jasper 
Mauduit,  agent  in  England  for  Massachusetts'  Bay,  to  the  general  court 
of  that  Province,  dated  9th  June,  1764,  that,  if  the  Province  would  cede 
to  the  Crown  all  pretence  of  right  or  title  they  might  claim  under  their 
Charter  to  the  lands  on  the  River  St.  Lawrence,  intended  to  form  part 
of  the  Government  of  Quebec,  the  Crowu  was  disposed  to  waive  all 
further  dispute  concerning  the  lands  as  far  as  St.  Croix,  and  from  the  Sea 
Coast  of  the  Bay  of  Fundy,  to  the  bounds  of  the  Province  of  Quebec  : 
reserving  to  itself  only  the  right  of  approving  grants  of  land,  as  before. 

Under  all  these  circumstances,  and  principally  because  the  limits  be- 
tween Massachusetts  on  the  one  part,  and  Nova  Scotia  and  Canada  on 
th3  other  part,  had  been  actually  fixed  by  the  British  Government  in  the 
year  1763,  the  United  States  conteiid  that,  when  the  negotiations  were 
opened  in  1782,  the  former  Colony,  now  state  of  Massachusetts,  had  a 
strong,  though  still  questioned  title  to  the  disputed  territory,  which  is 
now  claimed,  as  belonging  of  right  to  the  said  States  under  the  terms 
of  the  treaty.  That  this  claim  of  Massachusetts  was  discussed  by  the 
Negotiators,  and  was  the  subject  of  long  debates,  is  a  matter  of  record. 
And  so  tenacious  and  confident  were  the  American  Ministers  of  the 
right  of  Massachusetts,  that  they  propos  'd  to  leave  the  question  to  be 
settled  by  Commissioners  after  the  peace. 

When,  therefore,  it  is  urged  on  the  part  of  Great  Britain,  that  it  is  in- 
credible, that  she  should,  after  having  rejected  the  proposal  of  making 
the  River  St.  John,  from  its  mouth  to  its  source,  the  boundary  between 
the  two  Powers,  she  should  have  yielded  the  upper  basin  of  that  river 
and  the  natural  communication  between  Nova  Scotia  and  Canada;  that 
suggest!  n,  founded  as  it  is  only  on  presumed  probabilities,  which  have 
been  discussed  in  the  preceding  section,  is  further  rebutted  by  the  great 
weight  which  the  claim  of  Massachusetts  must  necessarily  have  had  in 
determining  the  final  agreement.  This  seems  to  be  placed  beyond  a 
loubt  by  the  fact,  that  the  final  adjustment  was  precisely  that  which  had 
been  suggested  in  Mr.  Mauduit's  communication ;  viz  :  the  claim  of 
Massachusetts  to  the  narrow  tract  of  land  watered  by  the  rivers  which 
fall  into  the  River  St.  Lawrence,  wn  abandoned  ;  and  it  was  confirm- 
ed as  far  east  as  the  River  St.  Croix,  and  from  tho  Sea  Coast  to  the 
highlands  which  form  the  southern  boundary  of  th"  Province  of  Quebec. 


'^ri 


76 


Intentions  of  the  Negotiators. 


The  boundary,  determined  by  the  treaty  of  1783,  is  in  exact  confor- 
mity  with  that  claimed  by  Massachusetts  under  ita  charter,  modified  by 
those  acts  of  the  British  Government  of  the  year  1763,  which  had  es- 
tablished the  limits  of  Nova  Scotia  and  of  the  Province  of  Quebec. 
And  this  identity  leads  to  the  enquiry  of  the  understanding,  which  pre- 
vailed, between  the  years  1763  and  1783,  respecting  the  true  meaning 
of  the  acts  of  the  British  Government,  in  reference  to  the  Southern  boun- 
dary of  the  Province  of  Quebec. 

The  maps  published  since  the  treaty  of  1783,  may  bear  the  marks  of 
partiality,  and  have  been  modified  in  conformity  with  the  pretensions  of 
either  party.  No  such  bias  could  affect  those  that  were  published  in 
Great  Britain  between  the  years  1763  and  1783.  There  was  no  motive 
that  could  influence  Geographers  to  deviate  from  the  true  and  obvious 
meaning  of  the  acts  of  Great  Britain  which  had  established  the  Bounda- 
ries of  her  new  and  old  Provinces.  A  solitary  map,  even  though  be- 
longing to  that  epoch,  contradicted,  perhaps,  by  others,  would  be  no  au- 
thority. But  if  all  the  maps  published  in  England,  during  that  period, 
and  in  which  the  Boundaries  of  the  Province  of  Quebec,  as  established 
by  the  acts  of  Great  Britain  are  delineated,  do  agree  in  that  respect,  it 
will  prove  that  the  meaning  of  the  acts,  in  reference  to  that  Boundary, 
was  so  clear  and  obvious  that  they  were  universally  understood  in  the 
same  manner. 

All  the  maps  of  that  period,  on  which  the  southern  Boundary  of  the 
Province  of  Quebec  is  laid  down,  and  which,  after  a  diligent  search, 
both  in  England  and  America,  have  been  obtained,  accompany  this  state- 
ment. Some  maps  may  have  escaped  notice ;  but  not  a  single  one  has 
been  omitted  that  has  come  within  the  knowledge  of  the  American  Go. 
verament. 

The  maps  thus  collected  are  the  following,  viz  : 
No.  1.  T.  Kitchen's  British  Dominions  in  North  America,  &c.  engra- 
ved  for  Dodsley's  Annual  Register  of  1763. 

2.  T.  Kitchen's  British  Dominions  in  North  America,  &c.  engra- 

ved for  Captain  John  Knox's  History  of  the  War  in  Ame- 
rica,  and  annexed  to  his  Historical  Journal  of  the  Cam- 
paigns in  North  America,  London.  1769. 

3.  British  Empire  in  North  America,  &c.  a)inexed  to  Wynn's  His- 

tory of  the  British  Empire,  &c.  London,  1770. 

4.  J.  Palairefs  North  America,  with  Improvements,  &c.  by  Dala- 

rochette,  London,  1765. 
ti.  J.  Ridge's  British  Dominions  in  North  America,  &c.  annexed 

to  a  complete  History  of  the  late  war,  &c.  Dublin,  1766. 
6.  North  and  South  America,  bv  the  American  Traveller,  annexed 

to  the  '-  American  Traveller,"  &c.  London,  1769. 


Former  Boundaries; 


rt 


n 


engra- 


I's  His- 

T)3la- 

inexed 

1766. 

inexed 


•. 


7.  North  America  and  West  Indies,  with  the  opposite  Coasts,  &c. 

London,  1776. — (Jeffery's  Atlas.) 

8.  North  America  improved  from  D'Anville,  with  divisions  by  P. 

Bell,  Engraved  by  R.  W.  SesV. — London,  1771. 

9.  P.  Bell's  British  Dominions  in  North  America,  &c.  1772,  an- 

nexed  to  "History  of  British  Dominions  in  North  Ame- 
rica," &c.  in  fourteen  books. — London,  1773. 

10.  S.   Dunn's  British   Empire  in   North   America.  —  London, 

1774.— (Jeffery's  Atlas.) 

11.  D'Anville's  North  America,  improved  with  English  Sur- 

veys, &c. — London,  1775. — (Jeffery's  Atlas.) 

12.  E.   Bowen  and  J.  Gibson's  North  America,  &c. — London, 

1775 — Two  sheets,  (Jeffery's  Atlas.) 

Sayer  and  Bennett's  Province  of  Quebec,  &c. — London, 
1776.— (Jeffery's  Atlas.) 

Seat  of  War  in  the  northern  Colonies,  &c. — London,  1776, 
annexed  to  the  American  Military  Pocket  Atlas. 

North  America,  &c.  corrected  from  the  materials  of  Gover- 
nor Pownall,  M.  P. — London,  1777.— (Jeffery's  Atlas.) 

Continent  of  America,  &c.  corrected  from  the  materials  of 
Governor  Pownall. — London,  1777. 

Faden's  British  Colonies  in  North  America,  1777. 

North  America  from  the  latest  discoveries,  1778 ;  engraved 


13 


14. 


15. 


16. 


17. 

18. 


W. 


for  "Carver's  Travels."— London,  1778  and  1781. 


47. 


T.  Jeffrey's  Nova  Scotia,  &c. — London,  1775. 

The  identity  of  the  Highlands  which  form  the  southern  boundary  of 
the  Province  of  Quebec,  with  those  which  are  claimed  by  the  United 
States  as  their  boundary,  will  appear  evident  on  the  first  inspection  of 
those  maps.  It  strengthens  the  proofs,  derived  from  them,  that  many  dif- 
fer from  each  other  in  several  irrelevant  particulars,  (f) 

The  River  Penobscot  is  laid  down,  in  some,  as  the  Western  boun- 
dary of  Nova  Scotia ;  in  others,  ./here  the  river  called  St.  Croix  is 
made  the  boundary,  the  name  is  given  to  different  rivers,  to  those  now 
known  as  the  Magaguadavic,  the  Scoodic,  and  the  Cobscook.  The 
course  of  the  line  drawn  from  the  source  of  the  St.  Croix  to  the  High- 
lands, is  not  the  same  in  all,  being  generally  due  north,  but,  in  some, 

(/)  Mosi  of  the  differences  are  found  in  the  western  boundary  of  Nova  Scotia 
and  not  in  the  southern  boundary  of  the  Province  of  dueboc.  The  reason  is,  that 
the  proclamation  of  1763  which  prescribed  this  last  boundary,  had  been  published  in 
a  variety  oT  ways  and  was  known  to  all ;  whilst  the  Commissions  of  the  Goverror 
of  Nova  Scotia,  which  regulated  the  western  boundary  of  that  Province,  were  not 
published  and  remained  unknown.  Some  of  the  map  makers  favoured  in  that  res- 
pect the  British  claim,  and  others  that  of  Massachusetts. 

7* 


w 


'4 


I 


t 


I 


78 


IntentioM  of  the  Negotiators, 


weit  of  north  ;  aud,  in  one  instance,  a  crooked  instead  of  a  straight 
line. 

That  line,  in  most  of  the  maps,  crosses  no  other  waters  but  those  of 
the  River  St.  John,  and  its  tributary  streams!^  while,  in  others,  it  also 
crosses  some  upper  branches  of  rivers  that  empty  themselves  into  the 
Gulf  of  St.  Lawrence.  The  boundary  from  that  line  eastward,  in  some 
of  the  maps,  reaches  the  Bay  des  Chaleurs,  by  passing  north  of,  and 
leaving  on  the  right,  the  River  Ristigouche :  in  others,  it  extends  along 
the  dividing  ridge,  to  the  source  of  that  river,  which  is  represented  as  a 
short  stream,  and  then  down  the  same  to  the  Bay. 

But,  in  every  instance,  the  course  of  the  line  from  the  source  of  the 
River  St.  Croix  is  northward  ;  in  every  instance,  that  line  crosses  the 
River  St  John  and  terminates  at  the  Highlands  in  which  the  rivers  that 
fall  into  the  River  St.  Lawrence  have  their  sources ;  in  every  instance, 
the  north-west  angle  of  Nova  Scotia  is  laid  down  on  those  Highlands, 
and  where  the  north  line  terminates ;  in  every  instance,  the  Highlands, 
from  that  point  to  the  Connecticut  River,  divide  the  rivers  that  fall  into 
the  River  St.  Lawrence,  from  the  tributary  streams  of  the  River  St.  John, 
and  from  the  other  rivers  that  fall  into  the  Atlantic  Ocean. 

This  universal  understanding  is  easily  accounted  for.  The  descrip- 
tion of  the  southern  boundary  of  the  Province  of  Quebec,  in  the  Acts 
of  the  British  Government,  was  in  that  respect,  like  that  of  the  boun- 
dary of  the  United  States  by  the  treaty  of  1783,  expressed  in  terms  ao 
clear  as  to  admit  of  no  doubt,  and  to  be  susceptible  of  but  one  construe 
tion.  What  eHect  that  universal  understanding  had  on  the  framers  of 
the  treaty  of  1783,  will  now  be  considered. 

Mitchell's  map  is  acknowledged,  by  both  parties,  to  have  regulated 
the  joint  and  official  proceedings  of  the  framers  of  the  treaty  of  17S3 : 
and  the  southern  boundary  of  the  Province  of  Quebec,  designated  for 
the  first  time  by  the  Proclamation  of  1763;  was  not,  and  could  not  be, 
laid  down  on  that  map,  which  was  published  in  the  year  1765. 

This  acknowledgment  is  founded  on  the  testimony  of  the  American 
Negotiators,  taken  at  the  time  when  the  question  "  what"  was  the  true 
River  St.  Croix,  had,  by  virtue  of  the  treaty  of  1794,  been  submitted  to  a 
Joint  Commission.  The  deposition  of  John  Adams  states,  that  «  Mitch, 
ell's  map  was  the  only  map  or  plan  which  was  used  by  the  Commis- 
sioners at  their  public  conferences,  though  other  maps  were  occasionally 
consulted  by  the  American  Commissioners,  at  their  lodgings." 

In  a  letter  to  Lieutenant  Governor  Cushing,  of  Massachusetts,  of  the 
26th  of  October,  1784,  when  Mr.  Adams's  recollections  on  the  subject 
were  quite  fresh,  he  writes  :  "  We  had  before  tis,  through  the  whole  nego- 
tiatiorij  a  variety  of  maps ,-  but  it  was  Mitchell's  map,  upon  which  was 
marked  out  the  whole  of  the  Boundary  Lines  of  the  United  States  ; 


Fojtner  Boundaries. 


79 


I 


and  the  River  St.  Croix,  which  we  fixed  on,  was  upon  that  map  the 
nearest  river  to  St.  John's  ;  so  that,  in  all  equity,  good  conscience,  and 
honor,  the  river  next  to  St.  John's  should  be  the  boundary."  (g-) 

One  of  the  maps  annexed  to  this  statement,  (No.  12,}  that  of  Eman- 
uel Bowen,  published  in  1775,  is  specially  quoted  in  the  Report  of  the 
Committee  of  Congress  of  the  ICth  of  August,  1782,  and  was  therefore 
in  possession  of  the  American  Government. 

The  fact  of  other  maps  having  been  consulted  by  the  American  Min- 
isters, is  sufficient  proof  of  their  knowledge  of  what  was  universally  un- 
derstood by  the  Highlands  prescribed  as  the  southern  boundary  of  the 
Province  of  Quebec.  And  it  may  be  fairly  inferred  from  the  words,  in 
the  letter  of  Mr.  Adams  of  October,  1784,  "We  had  before  us,  through 
the  whole  negotiation,  a  variety  of  maps,"  &c.  that  those  maps  were  be- 
fore the  Joint  Negotiators.  Yet  it  may  be  insisted  that  it  is  not  in  proof 
that  the  British  Commissioners  werb  acquainted  with  any  other  map 
than  that  of  Mitchell. 

On  the  supposition  that  the  British  Government  selected,  for  the  pur- 
pose of  treating  with  the  American  Commissioners  respecting  bounda- 
ries, men  who  bad  never  seen,  and,  on  that  occasion,  did  not  examine 
any  of  the  numerous  maps  of  America  published  during  the  twenty  next 
preceding  years  ;  on  the  supposition  that  those  Negotiators  had  no  know* 
ledge  of  such  familiar  collections  as  Jeffrey's  American  Atlas,  or  the 
American  Military  Pocket  Atlas  ;  on  the  supposition  that  having,  almost 
throughout  the  treaty,  adopted  the  boundaries  designated,  and  even  the 
phraseology  used  in  the  Proclamation  of  1763,  they  neglected  to  consult 
any  of  the  maps  in  which  the  boundaries  were  laid  down  in  conformity 
with  that  Proclamation  ;  on  the  supposition  that  the  same  unaccountable 
carelessness  existed  in  the  British  Cabinet,  to  whom  the  case  is  proved 
to  have  been  specially  referred  more  than  once  ;  on  these  suppositions, 
but  on  these  alone,  may  it  be  pretended  that  the  British  Negotiators 
were  ignorant  of  the  universal  understanding  respecting  tho  southern 
Boundary  of  the  Province  of  Quebec,  and  unaware  of  its  connection 
with  the  Boundary  established  by  the  treaty  of  1783.  Even  on  such 
supposition,  it  will  hereafter  be  shown,  that  Mitchell's  map  is  suineient 
to  establish  what  Highlands  were  intended  by  the  Proclamation  of  1763, 
and  by  the  treaty  of  1783. 

The  Provisional  Articles  of  Peace  between  Great  Britain  and  the 

(g)  Though  the  remark  may  be  superfluous,  it  may  be  obseryed  that  the  fact  of 
other  maps  having  been  consulted  is  mentioned  by  Mr.  Adams  for  no  particu- 
lar purpose,  and  only  in  order  to  state  the  whole  truth.  The  River  St.  Croix 
was  at  that  time,  the  only  subject  of  contention,  and  Mitchell's  map  was,  in  that  res- 
pect, decisive  in  favor  of  the  pretension  of  the  United  States,  whilst  several  of  the 
subsequent  maps  favored,  as  to  that  point,  the  British  claim. 


80 


Intentions  of  the  JVegotiators. 


United  States  had  been  signed  on  the  30th  November,  1782.  The 
Boundaries  then  agreed  on  are,  without  any  alteration,  the  same  as  those 
of  the  detinitive  treaty  concluded  on  the  3d  day  of  September,  1783. 

During  the  interval  that  elapsed  between  the  signing  of  the  prelimina- 
ries and  of  the  definitive  treaty,  four  maps  of  the  United  States  were 
published  in  London,  one  of  which,  at  least,  (Bew's,)  appears  to  have 
been  intended  as  illustrative  of  the  Debates  in  Parliament  on  the  sub- 
ject of  ^e  Boundaries,  viz  : 

No.  19.  Sayer  and  Bennet's  United  States  of  America  with  the 
British  possessions,  &c.  London,  9th  February,  17S3. 

20.  Bew's  North  America,  &c.  (or  Rebel  Colonies,  now  Uni- 
ted States,)  engraved  for  the  Political  Magazine.  Lon- 
don, 9lh  February,  1783. 

21.  J.  Wallis'  United  States  of  America,  &c.  London,  April, 
1783. 

22.  J.  Gary's  United  States  of  America,  &c.  London,  July, 
1783. 

These  maps  are  an  evidence  of  the  contemporaneous  understanding 
of  the  Boundaries  of  the  United  States,  according  to  the  preliminaries. 
In  all  of  them  those  Boundaries  are  laid  down  as  now  claimed  by  the 
United  States,  and  are  the  same  with  those  delineated  in  the  prece- 
ding maps,  as  the  Boundaries  of  the  Provinces  of  Quebec  and  Nova 
Scotia,  {h) 

The  only  contradictory  evidence  adduced  on  the  part  of  Great  Britain, 
is  intended  to  show,  that  the  Province  of  Quebec  had  been  understood, 
by  some  of  its  officers,  subsequent  to  the  Proclamation  of  1763,  to  ex- 
tend beyond  the  basin  of  the  River  St.  Lawrence.  It  consists,  1st,  of  a 
private  sale  and  some  leases,  recorded  at  Quebec,  of  a  tract  of  land 
called  the  Fief  of  Madawaska,  situated  on  one  of  the  upper  branches  of 
the  River  St.  John,  which  had  formerly  been  granted  by  the  French 
Government  of  Canada ;  2dly,  of  a  notice,  respecting  encroachments  on 
the  hunting  grounds  of  the  Indians  on  the  River  St.  John. 

The  Fief  of  Madawaska  was  granted  in  the  year  1683  to  a  French 
subject,  by  the  French  Governor,  and  Intendant  of  New  France  and 
Acadia.  The  ancient  date  and  French  origin  of  the  Grant  are  certain- 
ly irrelevant  to  any  question  at  issue  between  Great  Britain  and  the 
United  States.  Although  the  grant  is  made  by  the  Governor  of  both 
Canada  and  Acadia,  it  is  admitted,  and  is  undoubtedly  true,  that  the 
jurisdiction  of  the  Governors  of  Canada,  as  such,  extended  over  a  con- 


(A)  Seven  other  maps  of  the  same  character,  published  during  the  same  and  the  en- 
suing year,  afford  additional  proof  of  that  understanding ;  and  evidence  is  not  want- 
ingthat  it  continued  to  prevail  in  England  for  many  subsequent  years. 


Former  Boundariet. 


81 


siderable  portion,  and  since  the  Treaty  of  Utrecht,  over  the  whole 
country  watered  by  the  River  St.  John.  That  the  whole  country  wai  a 
perpetual  nuhject  of  litigation  between  France  and  England,  is  well 
known.  Neither  of  the  two  Powers,  in  it»  charters  or  grants  of  land, 
paid  the  slightest  respect  to  the  claims  or  rights  of  the  other.  Between 
Great  Britain  and  the  United  States,  and  in  reference  to  the  colonial 
times,  no  other  authority,  as  respects  such  charters  or  grants,  can  be 
appc^aled  to,  than  the  public  documents  which  emanated  from  the 
British  Government.  Great  Britain  after  the  cession  of  Canada,  had 
a  perfect  right  to  annex  to  any  of  her  other  colonies,  any  portion  of  the 
territory  which  had  made  part  of  that  province,  or  had  been  possessed 
by  France  before  the  cession,  and  to  restrain  her  new  government  of 
Quebec,  within  any  limits  she  thonght  proper  to  assign  to  it ;  and  this 
she  actually  did  by  the  Proclamation  of  1763. 

It  is  obvious,  that  the  fact  of  a  grant  of  land  of  Canadian  origin  be< 
ing  found  in  any  place,  on  the  River  St.  John,  does  not  prove  that  it 
ever  lay,  or  does  lie  within  the  boundaries  of  the  Province  of  Quebec, 
(now  Lower  Canada,)  as  prescribed  by  the  Royal  Proclamation  of  Oc- 
tober 7th,  1763.  And  no  other  evidence  has  been  produced,  of  a  date 
subsequent  to  that  proclamation,  in  any  way  relating  to  that  Fief,  than 
the  fact,  that  various  deeds  of  sate  and  leases  of  the  property  were  re- 
corded, either  in  what  is  called  the  Registers'  office  of  Quebec,  or  in 
those  of  Public  Notaries  of  the  same  City.  Of  the  three  deeds  of  sale, 
one  is  dated  July,  1763,  prior  to  the  Royal  Proclamation,  and  the  two 
others,  June  and  August,  1S02,  suh^^quenl  Ut  the  Treaty  of  1783.  Of 
the  four  leas'  ■',  one  is  dated  in  178<"  and  the  three  others  are  the  only 
acts  produce!  dated  subsequeu  to  the  proclamation  of  1763 
and  previous  the  Treaty  jo(  1 .  ->3.  That  such  obscure  trans- 
actions could  r>ve  had  any  effect  on  the  result  of  the  negotiations  for 
peace,  or  have  even  been  known  to  the  negiamtot;^,  will  hardly  be  as- 
serted. The  recording  of  those  instruments  at  Quebec  only  shows,  if 
it  shows  any  thing,  that  the  lessees  and  grantees,  all  of  them  inhabitants 
of  Canada,  were  not  competent  juciijes  of  what  were  the  limits  of  the 
province.  For  the  first  deed,  which  was  from  the  last  French  owner 
to  General  Murray,  who  was  a  competent  jndgp.  bears  dr.  •>,  July,  1763, 
before  the  limits  of  the  province  had  bceu  prescribed  by  the  British 
Government. 

But  there  was  a  KUlHcii^nt  reason,  why  those  sevi-ral  instruments 
should  have  been  thus  '•oe  :ded.  Every  one,  whether  lease  or  deed  of 
sale,  included  not  on; ;'  ihe  Fief  of  Madawaska,  but  also,  other  much 
more  valuable  lands,  situated  within  the  acknowledged  boundaries  of 
the  British  Province  of  Quebec. 

The  original  deed  to  General  Murray  includes,  1st.  the  fief  of  Mada- 


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33  WEST  MAIN  STiTEET 

WEBSTER,  N.Y.  14580 

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62 


Intentions  of  the  Negotiators. 


r/  i' 


waska  containing  three  leagues  in  front,  on  each  side  of  the  river  of 
the  same  name,  by  two  leagues  in  depth,  together  with  the  adjacent 
Lake  Temiscouata  (extent  of  lake  not  declared;)  2ndly.,  the  Scigneu- 
rie  of  the  River  Du  Loup,  (a  tributary  of  the  St.  Lawrence,)  contain- 
ing seven  leagues  and  half,  or  thereabout,  in  front,  on  an  average  depth 
of  more  than  two  leagues.  All  the  subsequent  deeds  of  s'ile  and  leases, 
embrace  both  those  fiefs ;  and  some  of  them  include  besides  other  large 
tracts  of  land,  and  even  houses,  all  situate  on  the  waters  of  the  River 
St.  Lawrence.  It  is  further  in  proof,  that  the  Seigneurie  of  Foucault, 
which  was  included  in  some  of  those  deeds  of  sale  or  lease,  was  known 
to  be  situated  in  part  east  of  the  River  Connecticut,  south  of  the  45th 
parallel  of  north  latitude,  and  therefore  without  the  acknowledged  boun- 
daries of  the  Province  of  Quebec. 

The  only  other  alleged  act  of  jurisdiction  by  the  Government  of 
Canada,  over  the  contested  territory,  of  a  date  prior  to  the  Treaty  of 
1783,  is  a  notice  from  the  Secretaries'  office,  dated  19th  January,  1765, 
and  inserted  in  the  Quebec  Gazette.  It  declaies  that  the  privilege  pray- 
ed for  by  the  St.  John  Indians,  namely ;  the  renewal  of  the  order  for- 
bidding the  inhabitants  of  Canada  to  hunt  on  their  grounds,  would  be 
allowed  and  confirmed  to  them,  unless  just  cause  could  be  f^hown  to  the 
contrary. 

When  the  question  was  to  quiet  Indians  in  the  vicinity  of  his 
Province,  a  British  Governor  might  have  been  justified  in  not  strictly 
attending  to  boundaries  running  across  a  country  yet  in  their  posses- 
sion. But,  in  this  instance,  the  Governor  of  Quebec  did  not  'overstep 
the  limits  of  his  legitimate  authorityr  The  order  applied  only  to  the 
tvhite  inhabitants  of  Canada,  residing  within  the  acknowledged  bounda- 
ries of  his  Piovince ;  and  he  had  a  right  to  forbid  their  hunting  on  In. 
dian  grounds,  though  situate  beyond  those  boundaries. 

To  argue  from  such  an  order,  that  the  River  St.  John  was  within  the 
limits  of  Canada,  would  be  just  as  rational,  as  to  insist  that  China  is 
part  of  the  dominions  of  Great  Britain,  because  she  did,  during  near 
two  centuries,  forbid  her  subjects  generally  to  trade  to  that  country. 

It  may  be  further  observed,  that  the  protection  of  the  Indians  was  one 
of  the  special  objects  of  the  Proclamation  of  1763.  Amongst  other 
provisions  to  that  efiect,  it  is  «  provided,  that  every  person  who  may  in- 
cline to  trade  with  the  said  Indians,  do  take  out  a  license  for  carrying 
on  such  trade,  from  the  Governor  or  Commander  in  Chief  of  any  of  our 
colonies  respectively,  tehere  atich  person  shall  reside."  Whence  it  clear- 
ly appears  that  the  powers  given  to  the  Governors,  in  relation  to  Indian 
affairs,  were  to  be  exercised,  with  respect  to  white  inhabitants,  in  reier- 
ence  to  their  place  of  residence,  and  not  to  that  of  the  Indians. 


Topographical  Knoidedgi 


e» 


In. 


one 
tther 
in- 
king 
our 
ear- 
lian 
Iter- 


§7. 
Topographical  knowledge  of  the  Negotiators. 

It  has  been  repeatedly  asserted,  in  the  British .  latements,  that  the  im- 
perfect  knowledge  of  the  topography  of  the  country  r^^ndered  it  impossi- 
ble  for  the  Negotiators  of  the  treaty  of  1783,  to  describe  the  boundary 
line  with  precision  ;  whence  is  inferred  the  necessity  of  recurring  to 
their  presumed  intentions. 

It  is  affirmed  in  those  statements,  that  "  the  very  imperfect  topograph!- 
cat  knowledge  then  had  of  the  interior  of  the  country,  which  was  in  fact 
but  one  general  wilderness,  rendered  it  absolutely  impossible  for  the 
framers  of  the  treaty  of  17Sb,  to  effect  their  declared  intention  of  laying 
down  the  several  points  and  lines  of  Boundary  with  such  a  degree  of 
accuracy,  as  to  preclude,  altogether,  doubts  on  particular  parts  of  it.  Ac- 
cordingly the  very  terras  of  the  treaty,  in  reference  to  the  point  in  ques- 
tion, manifest  the  uncertainty  of  the  Negotiators  ;  and  they  appear  to 
have  lef\  to  others  the  task  of  finding  that  point,  guided  by  their  descrip- 
tion of  it,  rather  than  to  have  positively  fixed  it  themselves." 

Again,  "how  extremely  difficult,  or  rather  how  utterly  impracticable 
it  must  have  been  for  the  Negotiators  of  1783,  to  describe  the  boundary 
throughout  its  whole  extent  in  such  terms  as  to  leave  no  room  for  hesi- 
tation or  dispute  in  fixing  its  actual  delimitation.*' 

There  is  no  doiibt,  that  the  Negotiators  wanted  the  topographical 
knowledge  necessary  to  define  some  other  portions  of  the  boundary.  It 
is  well  known  that  such  was  the  case,  with  respect  to  that  portion  which 
is  defined  in  the  treaty,  as  extending  from  the  most  north-western  point 
of  the  Lake  of  the  Woods,  on  a  due  west  course  to  the  River  Mississippi. 
It  was  afterwards  ascertained,  that  such  line  would  pass  north  of  Uie 
most  northern  sources  of  that  river,  and  that  the  boundary  was  defined 
in  such  terms,  as  rendered  it  impossible  to  execute  the  treaty  according 
to  its  tenor.  It  became  therefore  necessary  to  provide  by  a  new  nego- 
tiation for  an  amicable  settlement  of  the  question.  No  such  difficulty 
occurs  in  the  case  of  the  north-eastern  boundary,  which  is  alone  under 
consideration. 

In  another  part  of  the  British  statement,  and  in  reference  to  the  north- 
eastern boundary  itself,  the  following  passage  occurs,  vis  :  "  It  may 
surely  be  assumed  that  the  Negotiators  meant  to  define  the  Boundary  in 
a  spirit  accordant  with  the  just  and  liberal  views  declared  in  the  pream- 
ble of  the  treaty.  If  it  had  been  possible  to  describe  the  whole  bounda- 
ry line  with  minute  exactness,  their  desire  to  prevent  future  disputes 
would  doubtless  have  led  them  to  do  so.     But  they  evidently  did  not 


m 


'  -1 


I 


'  I 


84 


Intentions  of  the  Parties. 


mv' 


|i':- 


mif' 


V)[ 


possess  the  topographical  details  neceasary  for  such  extreme  precision. 
The  Boundary  was,  therefore,  of  necessity,  to  be  defined  in  general 
terms." 

It  becomes  therefore  highly  important  to  demonstrate,  as  it  may  be 
done  conclusively,  that  th<d  framers  of  the  treaty  had  a  knowledge  of  the 
topography  of  the  country  amply  sufficient,  with  respect  to  the  north* 
eastern  boundary,  to  enable  them,  whatever  their  intentions  might  be^ 
to  describe  it  with  great  correctness  in  reference  to  the  rivers. 

It  is  observed  in  the  British  Statement,  "  that  if  little  was  ascertained 
concerning  the  sources  and  directions  of  rivers,  which  generally  afford 
the  earliest  means  of  communication,  and  the  most  convenient  places 
for  settlement  in  newly  occupied  countries,  how  very  much  less  was 
probably  known  of  a  hilly  or  mountainous  tract,  situated  at  a  distance 
from  the  Sea,  overgrown  with  forests,  and  intermingled  with  extensive 
morasses."  This  passage  is  quoted,  on  account  of  its  admitting,  as  the 
United  States  maintain,  that  nothing  was  known  of  the  nature  of  the 
ground  over  which  the  boundary  might  pass,  and  as  acknowledging,  that 
something  at  least  was  known  concerning  the  sources  and  courses  of 
the  rivers.     The  following  passage  is  more  in  point : 

"Some  knowledge,  however,  though  in  many  respects  limited  and  in* 
accurate,  must  surely  have  existed  of  a  region  not  wholly  destitute  of 
settlers,  which  had  been  traversed  not  long  before  by  a  body  of  Troops, 
and  previously  investigated  by  an  Officer  in  the  public  employment,  and 
of  which  several  maps  exhibiting  the  supposed  courses  of  the  principal 
rivers  and  the  general  outline  of  the  coast  and  bays  had  been  published. 
That  knowledge,  whatever  may  have  been  its  degree,  must  surely  have 
reached  the  JVegotiaiors  of  the  Treaty  ;  and  there  can  be  little  doubt  that, 
in  describing  the  Boundaries  of  the  United  States,  they  were  more  or 
less  guided  by  its  influence." 

Although  the  numerous  maps  published  between  the  years  1763  and 
1783,  adduced  on  the  part  of  the  United  States,  have  been  objected  to,  as 
far  as  related  to  the  southern  boundary  of  Canada  therein  delineated,  it 
'  could  not  be  denied  that  they  were  a  proper  evidence  of  the  knowledge 
then  generally  had  of  the  topography  of  the  Country.  It  would  be  pre- 
posterous to  suppose,  that  the  Negotiators  of  the  Treaty  had  not  the  same 
gsneral  geographical  information  which  every  one  who  looks  at  maps 
does  possess  ;  or  that  their  attention  was  not  called  to  that  which  was 
a  principal  subject  of  discussion  in  the  course  of  the  negotiations.  Nor 
can  it  be  denied,  that  maps  have  been  considered  among  the  best  evi. 
deuces  of  the  general  geographical  knowledge  at  the  time  when  such 
maps  were  published. 

All  the  maps  published  between  1755  and  1783  agree  with  that  of 
Mitchell's,  as  regards  the  interior  portion  of  the  country,  and  specially 


Topographical  Knowledge. 


SB 


the  course  and  length  of  the  River  St.  John.  That  entire  coincidence, 
respecting  those  general  features,  which,  as  will  be  seen,  were  sufficient 
to  enable  the  Negotiators  of  the  treaty  to  define  in  the  most  precise 
manner  the  portion  of  the  boundary  in  question,  proves  that  those  fea- 
tures were  an  universally  known  and  admitted  Geographical  fact  That 
knowledge  was  till  1783,  and  for  several  years  afterwards,  almost  exclu- 
sively derived  from  the  explorations  of  the  French  when  they  were  in 
possession  of  the  country. 

The  French  map  which  is  the  type  of  all  those  which  followed  is,  that 
of  the  Eastern  part  of  New  France  or  Canada  published,  in  1744,  by  the 
Engineer  Bellin,  and  annexed  to  the  History  of  New  France  by  Charle- 
voix, published  the  same  year.  The  following  observation  appears  on 
the  face  of  the  map  ;  <'  This  map  is  very  different  froi  any  that  has  as 
yet  appeared.  I  owe  that  knowledge  to  the  several  manuscript  maps, 
plans  and  journals  in  the  Depot  of  the  Marine,  and  to  the  memoirs 
communicated  to  me  by  the  Jesuit  Missionaries." 

Mitchell's  map  is,  for  the  portion  of  the  country  now  in  question,  aU 
most  a  transcript  of  that  of  Bellin.  Great  Britain  cannot  reject  its  au- 
thority, which  is  proved  by  the  evidence  of  the  framers  of  the  Treaty^ 
and  which  is  acknowledged  by  the  Convention  of  1827,  to  have  regu- 
lated the  joint  and  official  proceedings  of  the  Negotiators.  When  the 
assertions,  of  the  imperfect  topographical  knowledge  then  had  of  the  in- 
terior of  the  country  and  of  the  consequent  absolute  impossibility  for  the 
framers  of  the  Treaty  of  1783  to  describe  the  boundary  with  sufficient 
accuracy,  are  recollected  ;  the  vast  advantage  will  immediately  be  per- 
ceived of  having  at  least  one  map,  mutually  acknowledged  to  be  conclu. 
sive  evidence  of  the  topography  of  the  country,  as  it  was  understood  by 
them,  and  by  which,  comparing  it  with  the  terms  of  that  instrument,  the 
true  intentions  of  those  ministers  may  be  ascertained ;  and  to  this  map 
alone,  independent  of  any  subsequently  published,  and  even  jsetting  aside 
every  other  evidence  that  may  elucidate  the  subject,  the  United  States 
will  now  appeal,  as  the  proper  test  of  those  intentions. 

The  great  River  St  John,  which  is  the  principal  feature  of  the  inte- 
rior and  disputed  territory,  is  laid  down  by  Mitchell  with  considerable 
accuracy,  both  as  to  course  and  distance,  from  the  place  where  it  is  in- 
tersected by  the  due  north  line  to  its  sources.  It  will  at  once  be  seen, 
that  the  boundaries  respectively  claimed  by  the  two  parties,  which  have 
for  that  purpose  been  now  traced  on  his  map,  do  not  materially  differ 
from  those  delineated  on  map  A. 

It  will  there  be  seen,  that  it  was  perfectly  well  known  to  the  negotia- 
tors: 

That  the  River  St.  John  penetrated  120  miles  west  of  the  due  north 

*     in  of  that  river  did  intervene   between 


'\':l 


t.n 


ill 


V 


upper 


8 


86 


Inientiom  of  Ihe  Parties, 


I'l 


r.^:: 


the  sources  of  the  Penobscot  and  Kennebec,  and  those  of  (he  rivers 
which  fall  Into  the  River  St.  Ijawreiice : 

That,  from  the  source  of  the  River  St.  Croix  to  the  sources  of  the 
tributary  streams  of  the  St.  Lawrence,  there  was  not  on  the  due  north 
line,  which  is  distinctly  marked  on  the  original  map,  a  single  point 
which  divided  any  other  rivers  whatever  from  each  other,  than  streams 
falling  into  one  and  the  same  fiver,  viz :  the  St.  John  : 

That  the  said  due  north  line  did,  between  the  source  of  the  St.  Croix 
and  that  of  the  tributary  streams  of  the  St.  Lawrence  met  by  that  line, 
intersect  the  main  River  St.  John  : 

That  any  line,  drawn  along  the  dividing  highlands,  from  any  point 
on  the  due  north  line  south  of  the  River  St.  John,  towards  the  sources 
of  the  Kennebec  and  of  the  Chandiere,  must  through  its  whole  extent, 
or  near  120  miles,  according  to  the  map,  divide  no  other  rivers  from 
each  other  than  the  sources  of  the  tributary  streams  of  the  St.  John  from 
those  of  the  several  branches  of  the  Penobscot  and  of  the  Kennebec  : 
That  any  line  drawn  towards  the  sources  of  the  Chandiere  from  any 
point  on  the  due  north  line,  north  of  the  River  St.  John  and  south  of 
the  highland  which  divides  the  northerly  source  of  that  river  from  the 
waters  of  the  St  Lawrence,  would  divide  no  rivers  whatever  from  each 
other,  but  would  intersect  the  several  branches  of  the  St.  John  : 

And  that  a  line  drawn  along  dividing  highlands,  from  the  highland 
which  on  that  map  divides,  the  sources  of  the  tributary  streams  of  the 
St.  LawreQce  from  those  of  the  St.  John,  to  the  highland  which  divides 
the  sources  of  the  Kennebec  from  those  of  the  Chandiere,  must  through 
the  whole  distance,  or  150  miles  in  a  straight  line  according  to  the  map, 
necessarily  divide  the  sources  of  the  tributary  streams  of  the  St.  Law. 
renco  from  the  sources  of  the  several  branches  of  the  St.  John,  and  from 
no  other  rivers  whatever. 

With  all  t^ose  data  before  them,  which  may  be  verified  by  an  inspec- 
tion of  Mitchell's  map,  it  is  impossible  to  deny  that  the  negotiators  of  the 
Treaty  of  1783  had  all  the  knowledge  necessary  to  describe  the  boun- 
dary with  sufficient  accuracy. 

The  mistakes  of  longitude  in  Mitchell's  map  do  not  affect  the  question, 
since  the  relative  position  of  the  principal  points  was  all  that  was  ne- 
cessary for  a  correct  description  of  the  boundary.  The  length,  in  a 
straight  line,  of  Mitchell's  St.  Croix  from  its  mouth  to  its  source  is  a 
few  miles  greater  than  in  map  A.  The  length,  of  the  due  north  line 
from  the  source  of  the  St.  Croix  to  that  of  a  river  emptying  into  the  St. 
Lawrence  is  about  twenty  miles  shorter  in  Mitchell's  than  in  map  A  ; 
The  westernmost  source  of  the  St.  John  is  in  both  maps  placed  north 
of  west  from  the  source  of  the  St.  Croix,  and  the  distance  between  those 
two  points  is  twenty  miles  shorter  in  Mitchell's  than  in  map  A  :  Mitch- 


1^ 


Topographical  Knoxeledgt. 


87 


inspec- 
of  the 
boun- 

uestion, 
vas  ne- 
th,  in  a 
ce  is  a 
rth  Hue 
the  St. 
nap  A ; 
d  north 
n  those 
Mitch- 


ell's Lake  Medusa,  which  is  the  Lake  Temisquata  of  map  A,  is  placed 
50  miles  east  of  its  true  position.  It  is  clear  that  neither  of  those  dif- 
ferences could  affect  the  general  result  or  prevent  an  accurate  description 
of  the  intended  boundary,  (t) 

With  those  facts  before  them,  if  the  negotiators  of  the  treaty  had  in- 
tended that  the  north-west  angle  of  Nova  Scotia  should  be  placed  on 
highlands  situated  south  of  the  River  St.  John,  or  on  any  point  of  the 
due  north  line  lying  between  and  dividing  only  tributary  streams  of  the 
River  St.  John,  it  is  impossible  that  they  should  have  described  that 
angle  as  being  on  highlands  dividing  the  waters  of  the  River  St.  Law- 
rence from  rivers  falling  into  the  Atlantic  Ocean. 

It  is  equally  impossible,  that  if  the  Negotiators  intended  that  the  boun- 
dary, from  the  due  north  line  to  the  sources  of  the  Chaudiere,  should  for 
one  hundred  and  twenty  miles,  either  divide  the  sources  of  the  Penob- 
scot and  of  the  Kennebec  from  those  of  the  St.  John,  or  should,  without 
dividing  any  rivers,  only  intersect  branches  of  the  St.  John,  they  should 
have  described  such  a  boundary,  as  being  on  Highlands  dividing  the 
waters  of  the  River  St.  Lawrence  from  the  rivers  falling  into  the  Atlan- 
tic Ocean. 

Yet  it  is  asserted  by  Great  Britain,  that  it  was  the  invention  of  the 
parties  to  the  treaty  of  1783,  that  the  point  designated  in  it,  as  the 
north-west  angle  of  Nova  Scotia ;  that  is  to  say,  the  point  at  which  the 
line  drawn  due  north  from  the  source  of  the  River  St.  Croix  meets  the 
intended  Highlands  and  terminates,  should  be  found  to  the  south  of  the 
River  St.  John. 

And  it  was  manifest  by  Mitchell's  Map,  and  therefore  perfectly  well 
known  to  the  Negotiators,  that  no  point  or  part  of  the  due  north  line 
aforesaid,  south  of  the  River  St.  John,  did  or  could  divide,  from  each 
other,  any  rivers  whatever,  but  some  branches  of  the  said  River  St.  John. 

It  is,  therefore,  contended,  on  the  part  of  Great  Britain,  that,  intend- 
ing to  designate,  as  the  north-west  angle  of  Nova  Scotia,  and  as  the 
termination  of  the  due  north  line  which  forms  the  Eastern  boundary  of 
the  United  States,  some  point  known  to  them  to  divide,  from  each 
other,  no  other  rivers  than  some  branches  of  a  river,  which  falls  neither 
into  the  River  St.  Lawrence,  nor  (according  to  the  hypothesis,)  into  the 
Atlantic  Ocean ;  the  framers  of  the  treaty  did  deliberately  describe 
that  Eastern  boundary,  as  a  line  drawn  from  the  source  of  the  River  St. 
Croix,  "  directly  north,  to  the  aforesaid  Highlands  which  divide  the 
rivers  that  fall  into  the  Atlantic  Ocean  from  those  which  fall  into  the 
River  St.   Lawrence ;"  thun  defining  the  termination  of  that  line,  or 

(i)  The  fact,  that  the  north-we&t  angle  of  Nova  Scotia  has  been  found  to  be  on  a 
highland  which  divides  the  waters  of  the  River  St.  Lawrence  from  those;  ofthQ  Risti-i 
gouche,  will  be  hereafter  adverted  to. 


m 


I 


»8 


Intentions  of  the  Parties. 


0lY 


north-west  angle  of  Nova  Scotia,  by  a  designation  known  to  them  not 
to  apply  to  the  point  which  they  intended  to  define. 

It  is  again  ap-'erted  by  Great  Britain,  that  the  Highlands  which  actu- 
ally divide  the  rivers  specified  by  the  treaty,  and  which  alone  were  con- 
templated as  such  by  the  Negotiators,  are  only  those  which,  from  the 
north-westernmost  source  of  the  Fenobscot,  to  the  north-westernmost 
source  of  the  Connecticut  River,  divide  the  Rivers  Penobscot,  Kenne- 
bec, and  Androscoggin,  fn  m  the  Rivers  Chandiere  and  St.  Francis, 
which  empty  themselves  into  the  St.  Lawrence  ;  and  that  the  boundary 
line,  intended  and  described  by  the  treaty,  does,  from  the  above-men- 
tioned point  south  of  the  River  St.  John,  on  the  due  north  line,  extend 
south  of  the  said  river,  along  the  heads  of  the  River  Penobscot,  to  its 
north-westernmost  source,  as  it  is  delineated  on  the  Map  A. 

But  it  was  manifest  by  Mitchell's  Map,  and  therefore  perfectly  well 
known  to  the  Negotiators,  that  the  nearest  source  of  the  River  Chandi- 
ere, was  about  one  hundred  and  twenty  miles  distant,  in  a  straight  line, 
and  in  a  nearly  westerly  course,  from  any  point  of  the  due  north  line ; 
that,  through  that  whole  extent,  the  line  would  not  divide,  from  any  other 
river  whatever,  any  river  that  empties  itself  into  the  River  St.  Lawrence  ; 
and  that  it  could  not,  through  that  whole  extent,  divide  any  other  rivers 
from  each  other,  but  the  Penobscot  and  the  Kennebec  from  the  tributary 
streams  of  the  River  St.  John  ;  that  is  to  say,  rivers  falling  into  the  At- 
lantic Ocean,  from  a  river  falling  (according  to  the  hypothesis,)  into  the 
Bay  of  Fundy. 

It  is,  therefore,  contended  on  the  part  of  Great  Britain,  that,  intending 
to  designate  as  the  boundary  line,  from  the  north-west  angle  of  Nova 
Scotia  to  the  north-westernmost  head  of  Connecticut  River,  a  line  which, 
passing  south  of  the  River  St.  John,  was  known  io  them  to  divide,  for 
three-fiflhs  of  its  extent,  no  other  rivers  from  each  other,  than  rivers  fall- 
ing into  the  Atlantic  Ocean,  from  a  river  falling  into  the  Bay  of  Fundy  ; 
and  knowing  that  the  said  boundary  line  would  not,  at  a  shorter  distance 
than  one  hundred  and  twenty  miles  from  its  commencement,  reach  the 
Highlands  which  actually  divide  the  rivers  that  fall  into  the  Atlantic 
Ocean  from  those  which  empty  themselves  into  the  River  St.  Lawrence ; 
the  frumers  of  the  treaty,  intending  also,  as  expressly  stated,  that  their 
description  of  the  boundaries  should  be  such  as  that  all  disputes  which 
might  arise  in  future  on  the  subject  of  the  same,  might  be  prevented; 
did  deliberately,  and  after  much  contention  on  the  subject,  ultimately 
agree  to  define  the  boundary  thus  intended  to  be  established,  in  the  fol- 
lowing words,  viz : 

"  From  the  north- west  angle  of  Nova  Scotia,  viz  :  that  angle  which 
is  formed  by  a  line  drawn  due  north  from  the  source  of  St.  Croix  River 
to  the  Highlands,  along  the  said  Highlands  which  divide  those  rivers 


Topographical  KnoivUdge. 


99 


It  their 
I  which 

jnted  ; 
|mately 

^e  fol- 

I  which 

iRivef 

rivers 


that  empty  themselves  into  the  River  St.  Lawrence,  from  those  which 
fall  into  the  Atlantic  Ocean,  to  the  north- westernmost  head  of  Connec- 
ticut River." 

That  is  to  say,  that,  in  defining  the  boundary  in  question,  those  min* 
isters  described  a  line  which,  to  their  iinowledge,  divided,  for  three-fiflhs 
of  its  extent,  rivers  falling  into  the  Atlantic  Ocean  from  a  river  falling 
into  the  Bay  of  Fundy,  as  a  line  dividing  rivers  falling  into  the  Atlantic 
Ocean  from  rivers  emptying  themselves  into  the  River  St,  Lawrence ; 
thus  adopting  a  description  which,  to  their  knowledge,  was  applicable 
only  to  eighty  miles,  out  of  the  two  hundred,  along  which  the  said  boun- 
dary does,  and  was  known  by  them  to  extend  ;  and  which,  to  their 
knowledge,  was  entirely  inapplicable  to  the  one  hundred  and  twenty 
miles  next  to  the  place  of  beginning,  or  to  three-fifths  of  the  whole 
length  of  that  boundary. 

This  incredible  misapplication  of  language,  or  indeed  gross  absurdity, 
is  ascribed  to  eminent  and  practical  statesmen,  some  of  them  not  less 
remarkable  for  the  precision  and  perspicuity  of  their  style,  than  for  the 
clearness  of  their  conceptions  ;  and  in  a  case  where  the  description,  be- 
ing corrected  in  relation  to  the  River  Connecticut,  affords  an  incontes- 
tible  proof  of  the  strict  attention  they  paid  to  the  terms  used  in  describ- 
ing that  part  of  the  boundary. 

What  renders  the  supposition,  that  those  ministers  expressed  them- 
selves in  terms  so  contradictory  of  the  intentions  gratuitously  ascribed 
to  them,  still  more  untenable,  is,  that  there  would  not  have  been  the 
slightest  difficulty,  with  Mitchell's  Map  before  them,  in  defining  with 
the  utmost  precision,  if  so  intended,  the  boundary  line  as  now  contend- 
ed for  by  Great  Britain. 

Had  the  intention  been,  as  is  affirmed,  to  assign  to  Great  Britain  the 
whole  of  the  basin  of  the  River  St.  John,  there  would  not  have  been  any 
occasion,  either  to  refer  to  the  north-west  angle  of  Nova  Scotia,  or  that 
any  part  of  the  boundary  should  h-ive  been  a  line  drawn  due  north  f*»-om 
the  source  of  the  River  St.  Croix,  In  that  case,  the  boundary  would,  by 
any  ordinary  conveyancer  Ux  posses:' ion  of  Mitchell's  Map,  and  of  the 
intentions  of  the  parties,  have  been  described  in  the  following  words,  or 
in  other  as  explicit,  and  of  thei  same  import,  viz  : 

From  the  source  of  the  River  St.  Croix,  along  the  Highlands  which 
divide  the  rivers  that  empty  themselves  either  into  the  River  St.  John, 
or  into  the  River  St.  Lawrence,  from  those  which  fall  into  the  Atlantic 
Ocean,  west  of  the  mouth  of  the  River  St.  Croix,  to  the  north- western- 
most head  of  Connecticut  River East  by  a  line 

to  be  drawn  along  the  middle  of  the  River  St.  Croix,  from  it^  mouth  in 
the  Bay  of  Fundy  to  its  source. 

Had  it  been  intended,  though  for  what  object,  with  the  intentions 

8* 


% 


■»-v 


90 


Intentions  of  the  Parties. 


ascribed  to  the  Negotiators,  is  altogether  unintelligible,  that  a  due  north 
lino  drawn  from  the  source  of  the  Uiver  St.  Croix,  should  form  apart  of 
the  boundary,  a  slight  alteration  in  the  phraseology  would,  with  equal 
facility,  have  effected  that  purpose. 

These  conclusive  observations,  as  well  as  the  other  arguments  addu- 
ced on  the  part  of  the  United  States,  in  opposition  to  the  line  hereto- 
fore contended  for  on  the  part  of  Great  Britain,  are  equally  applicable 
to  any  other  boundary  that  may  be  suggested,  other  than  that  claimed 
by  them. 

Since  the  north-west  angle  of  Nova  Scotia,  and  the  boundary  extend- 
ing thence  westwardly  are  both  expressly  described  in  the  treaty,  as  be- 
ing on  and  along  the  highlands  which  divide  the  rivers  that  empty  them- 
selves into  the  river  St.  Lawrence,  from  those  which  fall  into  the  At- 
lantic Ocean  :  it  is  impossible  that  the  negotiators  should  have  intended 
to  designate  as  that  angle  and  as  that  boundary,  any  other  point  and  any 
other  boundary,  than  the  only  point  and  the  only  boundary  which,  on 
Mitchell's  Map,  divide  the  waters  of  the  River  St.  Lawrence  from  any 
other  rivers  whatever. 

And  since  the  only  rivers  which  on  Mitchell's  Map  are  divided  or 
separated  on  the  due  north  line,  and  thence  westwardly  and  south-west- 
wardly  for  more  than  one  hundred  and  fifty  miles  from  rivers  falling  in- 
to the  Atlantic  Ocean,  are  the  tributary  streams  of  the  St.  John,  it  ne- 
cessarily follows,  that  the  negotiators  must  have  considered  that  river  as 
falling  into  the  Atlantic  Ocean. 

With  Mitchell's  Map  before  his  eyes,  no  person  can  doubt,  that,  if 
the  framers  of  the  treaty  considered  that  river  as  not  falling  iuto  the  At- 
lantic Ocean,  they  did  designate  both  the  north-west  angle  and  boun- 
dary aforesaid,  by  terms  known  to  them  not  to  apply  to  the  angle  and 
boundary  which  they  intended  to  designate. 

And  with  the  said  map  before  him,  every  one  will  be  satisfied,  that  if 
they  did  consider  the  St.  John  as  one  of  the  riverd  falling  into  the  At- 
lantic Ocean,  the  negotiators  could  not  have  described  the  north-west 
angle  of  Nova  Scotia  and  the  boundary  between  the  two  Powers,  in  a 
more  precise  manner  than  in  the  terms  of  the  treaty.  It  is  for  that  rea. 
son  that,  unable  otherwise  to  adapt  the  terms  of  the  treaty  to  any  other 
boundary  than  that  claimed  by  the  United  States,  the  authors  of  the 
British  Statements  have  been  compelled  to  ascribe  to  the  framers  of  the 
treaty  a  gross  ignorance  of  those  gencal  features  of  the  country,  which 
were  at  the  time  universally  known  to  all  those  who  had  the  most  su- 
perficial knowledge  of  geography.  The  whole  argument  adduced  on 
the  part  of  Great  Britain,  in  order  to  explain  the  supposed  ambiguity  of 
the  terms  of  the  treaty,  is  condensed  in  the  following  passage  from  the 
second  statement. 


Topographical  KnouUdge. 


91 


north 

part  of 

equal 

)  addu- 
hereto- 
>Ucable 
:laimed 

DXtend- 
,  as  be« 
y  them- 
the  At- 
Dtended 
and  any 
hich,  on 
rom  any 

ivided  or 
ath-west- 
lUing  in- 
nn,  it  ne- 
river  as 

that,  if 
o  the  At- 
id  boun- 
ngle  and 

d,  that  if 
>  the  At- 
rth-west 
ers,  in  a 
that  rea. 
my  other 
s  of  the 
Irs  of  the 
y,  which 
Imost  su- 
lUced  on 
[iguity  of 
from  the 


"  What  reasons  may  have  prevailed  with  the  negotiators,  on  the  sup- 
position that  they  intended  to  designate  highlands  to  the  nouth  of  the 
St.  John,  as  those  which  the  due  north  line  was  to  meet,  not  to  declare 
that  specific  intention  by  an  additional  clause  of  the  treaty,  can  now  be 
only  matter  of  conjecture.  But  strong  probabilities  are  not  wanting  to 
aid  the  discovery  of  the  truth  even  in  this  particular  also." 

"  In.  the  first  place,  by  retaining  in  the  clause  respecting  rivers  and 
highlands  the  term  '  Atlantic  Ocean,'  in  connection  with  the  limited 
sense  unequivocally  attached  to  it  in  another  part  of  the  same  Article,  the 
British  Plenipotentiary  might  have  reasonably  hoped  to  preclude  any 
future  disagreement  on  the  subject.  In  the  second  place,  the  insertion 
of  a  definition  of  a  north-west  angle  of  Nova  Scotia,  calculated  to  ob- 
viate any  embarrassment  which  might  spring  out  of  the  use  of  that  term, 
as  a  known  and  settled  point  of  departure  with  reference  to  the  Colonial 
Boundaries,  may  also  have  contributed  to  satisfy  him  as  to  the  efficacy 
of  the  wording,  as  it  now  stands  in  the  Treaty." 

"  It  may  surely  be  assumed  that  the  negotiators  meant  to  define  the 
boundary  in  a  spirit  accordant  with  the  just  and  liberal  views  declared 
in  the  preamble  of  the  treaty.  If  it  had  been  possible  to  describe  the 
whole  Boandory  Line  with  minute  exactness,  their  desire  to  prevent  fu- 
ture disputes,  would  doubtless  have  led  them  to  do  so.  But  they  evi- 
dently did  not  possess  the  topographical  details  necessary  for  such  ex- 
treme precision.  The  boundary  was,  therefore,  of  ne^'^essity,  to  be  de. 
fined  in  general  terms." 

"  A  glance  on  Mitchell's  Map  was  sufficient  to  show  them,  that  a 
due  north  line  could  not  be  drawn  from  the  source  of  the  St.  Croix  to 
the  supposed  latitude  of  the  head  waters  of  the  Atlantic  rivers,  flowing 
westward  of  that  river,  without  a  probability  of  its  striking  some  of  the 
smaller  and  very  inconsiderable  lakes  or  water  courses  falling  into  the 
St.  John.  To  have  changed  the  grand  features  of  their  agreement,  on 
account  of  this  petty  consideration,  would  have  been  unwise  ;  and,  at 
the  same  time,  there  was  an  obvious  and  disproportionate  inconveni- 
ence in  guarding,  in  express  terms,  against  a  mere  contingency  of  no 
practical  importance." 

"  Again,  they  must  have  known  that  a  considerable  part  of  the  boun- 
dary line  would  be  traced  along  the  highlands  situated  nearest  to  the  head 
waters  of  the  Connecticut,  and  immediately  dividing  the  Kennebec  from 
the  Chandiere.  ^11  parties  agree  that  the  words  of  the  treaty  apply 
without  shadow  or  possibility  of  doubt,  to  that  portion  at  least  of  the 
highland  boundary.  The  highlands,  which  were  kno^on  to  range  along 
the  sources  of  the  more  eastern  Atlantic  rivers,  were  believed  to  be  a 
continuation  of  the  others." 

"In  order  to  frame  a  definition  more  nicely  and  literally  adapted  to 


02 


IntttUions  of  the  Parties. 


r^ 


„  '11 

.w 


'II..   f 

!'  f 
'i 


i  »!i!  'i 


m  f 


iii 


the  varying  circumstancea  of  the  line  as  thus  prolonged,  it  would  have 
been  necessary  to  obtain  an  exact  knowledge  of  that  part  of  it  where  the 
change  of  circumstances  was  to  operate ;  and  this  degree  of  precision, 
as  already  observed,  was  necessarily  unattainable  from  the  moment  that 
the  source  of  ixe  St.  John  had  ceased  to  be  in  view  as  the  proposed 
north-west  angle  of  Nova  Scotia.  The  due  north  line  was  intended  to 
strike  highlands  to  the  south  of  the  River  St.  John.  At  the  point  of 
intersection,  the  boundary  was  to  be  carried  west  in  such  manner  as  to 
place  all  the  rivers  flowing  on  that  side  of  the  St.  Croix,  and  conse- 
quently Atlantic  rivors,  within  the  territory  of  the  United  States.  To- 
wards the  other  extremity,  there  was  that  large  portion  of  the  Highland 
Line,  respecting  which  both  parties  are  agreed.  Upon  these  data,  it  is 
by  no  means  extraordinary  that  the  negotiators  should  have  fallen  into 
the  error  (for  such  the  pending  difference  authorizes  us  to  call  it)  of  sup- 
posing that  they  had  sufnciently  provided,  by  the  present  wording  of  the 
treaty,  for  the  due  direction  of  that  part  of  the  line  which  was  intended 
to  unite  the  point  of  departure  on  the  north  line,  with  the  north.western- 
most  head  of  Connecticut  River,  by  joining  on  to  that  other  part  of  the 
same  line  which  immediately  separates  the  sources  of  the  Kennebec 
from  those  of  the  Cbandiere." 

«  These  probabilities,  which  are  not  put  forward  as  known  undoubted 
truths,  being  nevertheless,  such  evidences  as  the  nature  of  the  case  ad- 
mits, must  have  their  weight  in  removing  the  objection  to  which  they 
immediately  relate,  and  must  contribute,  in  that  respect,  to  confirm  and 
fully  establish  the  position  previously  maintained  on  such  just  grounds, 
and  by  so  many  cogent  and  convincing  reasons  ;  namely,  that  the  High- 
lands of  the  Treaty  were  meant  to  be  fixed  to  the  South  of  the  St.  John." 

What  were  those  other  just  grounds  and  cogent  reasons  has  already 
been  stated.  It  is  not  necessary  to  advert  to  the  mode  of  reasoning  by 
which,  from  the  assumption,  that  the  due  north  Line  was  intended  to 
strike  Highlands  to  the  south  of  the  River  St.  John,  the  same  conclusion 
is  deduced ;  nor  to  the  repeated  suggestion,  that  a  continuation  of  High- 
lands dividing  the  rivers  contemplated  by  the  Treaty,  which  continua- 
tion does  not  divide  those  rivers,  is  to  be  taken  as  part  of  the  chain  of 
Highlands  which  actually  divides  those  rivers.  But  the  reasons  assign- 
ed, why  the  Negotiators  did  not  declare  the  specific  intention  ascribed 
to  them  by  Great  Britain,  by  an  additional  clause  of  the  Treaty,  or  by  an 
alteration  of  its  terms  are :  first,  that  the  term  Atlantic  Ocean,  retained 
in  the  clause  respecting  Rivers  and  Highlands,  in  connection  with  the 
limited  sense  unequivocally  attached  to  it  in  another  part  of  the  same 
Article,  might  have  reasonably  been  deemed  sufficient  to  preclude  any 
future  disagreement  on  the  subject ;  secondly,  the  insertion  of  a  defini- 


Topographical  Knoickdge. 


98 


itinua- 

iOf 

3sign- 
kribed 

by  an 
Itained 
lith  the 

same 
|e  any 

lefini- 


tion  of  the  north-west  angie  of  Nova  Scotia;  thirdly,  the  want  of  cuffi. 
cittot  topographical  kaowledge. 

The  laat  supposition  has  now  been  put  at  rest ;  and  it  has  been  de« 
monstrated,  that  the  definition  of  the  noith-wedt  angle  of  Nova  Scotia 
in  the  Treaty  proves  the  reverse  of  the  position  assumed  on  the  part  of 
Great  Britain.  In  order  to  explain,  why  the  Negotiators,  on  the  suppo- 
sition that  they  intended  to  designate  Highlands  to  the  south  of  the  St. 
John,  did  not8peci<y  that  intention  by  the  terms  of  the  Treaty,  nothing 
remains  but  the  retention  of  the  term  Atlantic  Ocean  as  above  stated. 
(j)  And  it  is  asserted  in  the  British  Statement,  that  though  the  treaty 
names  but  two  classes  of  rivers,  a  third  class  was  contemplated,  viz : 
rivers  which  fell  neither  in  the  Atlantic  Ocean,  nor  into  the  River  St. 
Lawrence. 

It  cannot  be  denied,  and  is  evident  from  Mitchell's  Map,  that  the  Ne- 
gotiators knew,  that  any  line  whatever,  drawn  from  any  point  what- 
ever on  the  due  north  line  towards  the  sources  of  the  Chandiere  and  of 
the  r^nobscot  or  Kennebec,  necessarily  must,  through  the  whole  dis- 
tance or  two  thirds  of  the  whole  boundary  between  the  due  north  line  and 
the  sources  of  the  Connecticut,  either  intersect  all  the  branches  of  the 
St.  John,  or  extend  along  the  ground  dividing  the  sources  of  those 
branches  from  those  of  the  tributary  streams  of  the  St.  Lawrence  or  of 
the  Penobscot.  They  knew  that  any  such  line  must  nece<isariiy  run 
through,  or  along  the  limits  of  the  whole  intervening  upper  basin  of  that 
River,  which  river,  as  is  asserted,  they  did  consider  as  not  falling  into 
the  Atlantic  Ocean.  And  it  is  seriously  suggested  that,  in  order  to  give 
effect  to  that  intention,  they  resorted  to  the  mode  of  defining  that  iden- 
tical line,  as  being  on  the  highlands  which  divide  the  rivers  that  empty 
themselves  into  the  River  St.  Lawrence  from  those  which  fall  into  the 
Atlantic  Ocean. 

It  is  asserted,  that  the  Negotiators  knowing,  that  all  the  maps  on  which 
the  southern  boundary  of  Canada  was  delineated,  placed  it  on  the  ground 
which  divides  the  waters  of  the  River  St.  Lawrence  from  those  of  the 
River  St.  John,  and  that  such  had  been  and  was  the  general  understand- 

(j)  The  retention,  from  the  rejected  Article  which  made  the  St.  John  the  boundary 
of  the  term  "Atlantic  Ocean,"  orthe  substitution  in  thetreaty  of  that  term  in  lieu  of 
the  word  "  Sea"  used  in  the  proclamation  of  1763.  The  difference  between  the  treaty 
and  the  Proclamation  does  not  consist  in  the  word  '*  Sea"  having,  in  reference  to  the 
American  shores,  a  more  extensive  meaning  than  "  Atlantic  Ocean ;"  but  in  that,  the 
"  Sea"  is  not  contradistinguished  from  any  ofiis  inlets  in  any  clause  of  the  Proclama- 
tion, which  is  not  therefore  liable  to  the  groundless  objection  raised,  on  account  of 
such  contradistinction  in  another  clause  of  the  Treaty,  of  the  Atlantic  Ocean  with 
one  of  its  inlets.  But  since  the  boundary  of  the  Treaty  is  the  same  with  that  of  the 
Proclamation,  the  St.  John,  which  was  an  Atlantic  river  according  to  the  Proclama- 
tion, is  an  Atlantic  River  according  t'j  t*.e  treaty. 


y 


1 


■i 


m 


94 


Intentions  of  the  Parties. 


ing;  knowing  also  that,  according  to  Mitchell's  map,  the  terms  of  the 
Treaty  could  not,  whatever  was  the  meaning  attached  to  the  term  Atlan- 
tic Ocean,  appl}'  to  any  other  boundary  than  that  which  thus  divides  the 
said  waters ;  perfectly  aware  'herefore  that,  unless  the  St.  John  was  deem- 
ed to  be  a  river  falling  into  the  Atlantic  Ocean,  the  norih-west  angle  of 
Nova  Scotia  and  the  boundary  prescribed  by  the  terms  of  the  Treaty  had 
no  existence  ;  and  satisfied,  as  they  must  have  been,  that  the  terms  of 
the  Treaty  could  not  be  understood  by  the  American  Negotiators,  other- 
wise than  as  confirming  the  said  southern  boundary  of  Canada  on  the 
Highlands  which  divide  the  waters  of  the  River  St.  Lawrence  from  those 
of  the  St.  John ;  the  British  Negotiators  intended  nevertheless,  by  re- 
taining in  that  clause  the  term  Atlantic  Ocean,  and  combining  it  with 
the  restricted  meaning  of  the  same  term  in  another  clause,  to  place  the 
boundary  in  direct  contradiction  of  the  terms  of  the  Treaty,  or,  if  that 
was  impossible,  to  give  a  designation  of  the  boundary  which,  as  they 
knew,  could  not  be  carried  into  effect. 

This,  though  certainly  not  intended,  might  be  construed  as  a  grave  im- 
putation on  the  British  Cabinet  and  negotiators,  which  the  elevated 
character  of  the  distinguished  statesman,  who  presided  at  that  moment 
over  the  British  councils,  would  alone  be  sufficient  to  repel.  But  the 
fact  is  that  the  negotiations  were  carried  on,  on  both  sides  with  perfect 
sincerity  and  good  faith,  and  even  with  feelings  much  more  friendly 
than  might  at  that  moment  have  been  expected.  Those  feelings  were 
manifested  throughout  the  whole  negotiation,  and  particularly,  by  the  de- 
sire evinced  to  insert  in  the  Treaty  a  liberal  commercial  arrangement} 
and  by  the  separate  article  concealed,  contrary  to  their  instructions,  by 
the  American  Ministers  from  the  French  Government. 

The  presumed  ambiguity  of  the  terms  of  the  Treaty  is  the  consequence 
of  the  untenable  construction  which  is  now  attempted  to  be  put  upon  it. 
As  applied  to  that  construction,  the  terms  are  not  merely  of  doubtful 
import ;  the  pretended  construction  is  in  direct  opposition  to  them.  As 
applied  to  the  boundary  claimed  by  the  United  States,  they  are  equally 
clear  and  precise.  They  were  thus  understood  by  both  parties  at  the 
time  when  the  Treaty  was  concluded.  And  if  any  doubt  remains  on 
that  point,  an  appeal  is  fearlessly  made  to  the  Archives  of  the  British 
State  Oflice. 

The  Government  of  the  United  States  is  in  the  habit  of  publishing 
every  thing.  In  the  course  of  the  discussions  on  this  subject  Great 
Britain  has  made  use,  as  she  had  a  right  to  do,  of  those  publications. 
In  a  direct  negotiation  between  the  two  Countries,  the  United  States  can- 
not require  a  reciprocity  of  communications  in  that  respect.  But,  if 
they  voluntarily  agree  to  a  second  reference,  they  have  a  rii^ht  to  ask, 
that  they  should  be  placed  before  the  Arbiter  on  an  equal  .jo<^;ng  with 


Topographical  Knowledge, 


96 


)fthe 
itlau- 
j8  the 
leem- 
gle  of 
:y  had 
rms  of 
other- 
DH  the 
I  those 
by  re- 
it  with 
ace  the 
if  that 
93  they 

ave  im- 
elevated 
moment 

But  the 
I  perfect 

friendly 

Igs  were 

the  de- 

;ement> 

ions,  by 

equence 
upon  it. 
doubtful 
m.  As 
equally 
}  at  the 
ains  on 
British 

Iblishing 
U  Great 
[cations. 
Ites  can- 
But,  if 
Ito  ask, 


^g 


w 


ith 


the  other  party ;  and  that  both  should  be  under  the  obligation  of  laying 
before  him  all  the  instructions  given  by  each  to  the  negotiators  of  the 
Treaty,  as  well  as  the  correspondence  which  took  place  between  each 
Government  and  its  plenipotentaries.  From  the  relative  distances  and 
the  frequency  of  communications,  the  coriespondence  between  the 
British  Government  and  its  Ministers  at  Paris,  must  have  been  much 
more  full  and  better  calculated  to  show  the  intentions  of  the  parties,  than 
can  be  deduced  from  the  few  letters,  which  exist  and  have  been  publish- 
ed from  the  American  Miuisters  to  their  Government. 

By  the  Convention  of  1627,  the  contracting  parties  were  bound  to 
give  copies  only  uf  acts  of  a  public  nature  ;  and  this  was  construed  so 
strictly,  that  the  British  Government  declined  to  give  copies  of  the 
opinion  given  in  1731,  by  the  Officers  of  the  Crown,  concerning  the 
charter  of  Massachusetts  and  of  the  order  in  Council  relative  thereto 
mentioned  in  the  letter  of  the  Board  of  Trade  to  Governor  Bernard,  {k) 

There  is  one  point  on  which  the  negotiators  may  have  been  led  into 
error  by  Mitchell's  map.  The  due  north  line  drawn  upon  it  does  not 
intersect  any  of  the  tributary  streams  of  the  Ristigouche.  It  may  be 
said  that  if  it  had  been  anticipated,  that  some  of  those  streams  would  be 
intersected  by  the  north  line,  tlieframers  of  the  Treaty  would  have  desig- 
nated the  highlands,  which  the  due  north  line  was  to  meet  as  dividing  the 
waters  of  the  River  and  Gulf  of  St.  Lawrence  from  those  of  the  At- 
lantic Rivers.  This  is  not  iir.probable,  as  the  boundary  would  have  been 
more  natural.  But  this  is  mere  conjecture  ;  and,  whatever  may  have 
been  the  intentions  of  the  negotiator?,  the  distinction  between  the  River 
and  the  Gulf  is  so  clearly  designated  by  nature  and  by  official  acts,  that 
the  terms  of  the  Treaty  do  not  seem  to  allow  that  construction.  Should 
it  be  thought  otherwise,  the  territory  which  embraces  the  head  waters  of 
the  Ristigouche  is  in  itself  of  little  value,  would  facilitate  the  communi- 
cation between  New  Brunswick  and  Canada,  and  might  be  yielded  by 
the  United  States  without  a  dereliction  of  principle.  (1) 

(k)  An  autbeniic  copy  of  the  opinion  of  the  Law  Oncers  of  the  Crown  was 
found  in  the  Archives  of  Massachusetts,  but  the  order  in  council  was  not  obtained. 

{I)  It  may  be  observed  that  the  River  St.  Lawrence  is  itself,  in  fact,  an  Atlantic 
River,  and  has  been  considered  as  such  by  all  geographers  (Multe  Brun,  Bouchette, 
&c.)  The  signification  of  the  term  Atlantic  Ocean  is  restrained  in  the  clause  which 
refers  to  the  divicsion  of  rivers  as  well,  but  not  in  the  same  manner,  as  in  the  clause 
to  which  the  Agents  of  the  British  Government  have  appealed.  In  tlie  first  clause, 
the  Highlands  must  divide  the  rivers  that  empty  themselves  into  the  River  St.  Law- 
rence from  all  the  other  Atlantic  Rivers.  In  the  oilier  clause,  Bay  of  Fundy  is  dis- 
tinguished from  the  main  Ocean,  or  from  the  whole  Atlantic  Ocean,  the  Bay  of  Fun- 
dy only  excepted. 


ilill 


86 


Recapitulation. 


P 


§  8. 
Recapitulation. 

The  summit  of  the  north-east  angle  of  the  United  States  and  that  of 
the  north-west  angle  of  Nova  Scotia  are  identic  ;  and  the  summit  of  the 
said  north-west  angle  is,  by  the  express  terms  of  the  treaty,  actually  placed 
on  Highlands  which  divide  those  rivers  that  empty  themselves  into 
the  River  St.  Lawrence  from  those  which  fall  into  the  Atlantic  Ocean. 
For  the  vord  said^  which  refers  to  the  "  Highlands ''  that  form  the  said 
north-west  angle,  identifies  them  with  the  Highlands  which  form  the 
boundary  and  divide  the  rivers  as  aforesaid :  and,  moreover,  the  eastern 
boundary,  which  terminates  at  thu  summit  of  the  said  north-west  angle, 
is  described,  in  a  subsequent  clause,  as  a  line  to  be  drawn  froin  the 
source  of  the  River  St.  Croix,  directly  north  to  the  afortsaid  Highlands 
which  divide  the  rivers  as  aforesaid. 

The  boundary  between  the  two  powers  is  described  in  the  treaty,  as 
being  from  the  summit  of  the  said  north-west  angle  of  Nova  Scotia, 
along  the  Highlands  which  divide  the  rivers  as  above  described,  to  the 
north-westernmost  source  of  Connecticut  River.  No  words  in  the  lan- 
guage could  have  been  selected  more  appropriate  and  precise  thanyront, 
along  and  to,  in  order  to  describe  a  boundary  intended  to  be  from  its 
beginning  to  its  termination,  without  any  chasm  or  interruption,  along 
Highlands  actually  dividing  the  rivers  that  empty  themselves  into  the 
River  St.  Lawrence  from  those  which  fall  into  the  Atlantic  Ocean.  And 
the  deliberate  attention,  bestowed  on  that  subject  by  the  Negotiators,  is 
demonstrated  by  the  care  they  took  in  correcting  an  error  which  left  a 
chasm,  between  the  45th  degree  of  latitude  and  the  source  of  the  Con- 
necticut, in  the  description  of  the  southern  boundary  of  the  Province  of 
Quebec,  or  Canada,  as  designated  ia  the  previous  acts  of  the  British 
Government,  viz :  the  Royal  Proclamation  of  1763,  and  the  Quebec 
Act  of  1774. 

It  is  asserted,  on  the  part  of  Great  Britain,  that  the  north.west  angle 
of  Nova  Scotia  is  to  be  found,  at  a  point  on  the  said  due  north  line,  near 
Mars  Hill,  about  forty  miles  north  from  the  source  of  the  St.  Croix,  or, 
according  to  Messrs.  Featherstonhaugh  and  Mudge,  at  a  point  about 
twelve  miles  further  north,  near  and  south  of  Restock  River  :  neither  of 
which  points  is  on  Highlands  dividing  the  waters  of  the  St.  Lawrence 
from  those  of  Atlantic  rivers,  or  nearer  such  Highlands  than  from  ninety 
to  one  hundred  miles  ;  and  both  of  which  divide  only  tributary  streams 
of  one  and  the  same  river,  viz  :  the  River  St.  John ;  which  river  does 
not  fall  into  the  River  St.  Lawrence,  nor,  according  to  the  construction 
put  on  the  treaty,  on  the  part  of  Great  Britain,  into  the  Atlantic  Ocean. 


Recapitulation. 


97 


bat  of 
of  the 
placed 
9  into 
3cean. 
[le  eaid 
riti  the 
eastern 
t  angle, 
orti  the 
ghlands 

eaty,  as 
I  Scotia, 
I,  to  the 
the  Ian. 
an/rom, 
from  its 
in,  along 
into  the 
in.    And 
[iatora,  is 
;h  lea  a 
[he  Con- 
tvince  of 
British 
Quebec 

jBBt  angle 
line,  near 
Jjroix,  or, 
Int  about 
leither  of 
Lawrence 
ninety 
streams 
Iver  does 
Istruction 
i  Ocean. 


It  is,  in  like  manner,  asserted,  that  the  boundary  between  the  two 
Powers,  from  either  of  those  two  points  to  a  Highland  which  divides  the 
sources  of  the  Penobscot  from  those  of  the  River  Chandiere,  a  tributary 
stream  of  the  St.  Lawrence  and  about  one  hundred  and  twenty  miles 
distant,  extends  along  Highlands  which  do  not  divide  any  rivers  empty- 
ing into  the  St.  Lawrence  from  any  rivers  whatever,  but  which  divide  and 
can  divide  na  other  rivers  whatever,  than  tributary  streams  of  the  said 
River  St.  John  from  tributary  streams  of  the  same  river  and  of  the 
Penobscot. 

Both  assertions  are  not  an  interpretation,  hut  a  direct  and  obvious 
violation  of  the  express  terms  of  the  treaty.  The  attempt  to  obviate  this, 
by  calliug  the  Highlands  claimed  on  the  part  of  Great  Britain,  a  contin- 
uation of,  or,  connexion  tvitk  the  Highlands,  one  hundred  and  twenty 
miles  distant,  acknowledged  by  both  parties  to  be  the  Highlands  con- 
templated by  the  treaty,  is  tantamount  to  an  interpolation  in  the  treaty 
of  one  of  those  expressions. 

The  term,  "  Highlands  which  divide,  &c.,"  applied  to  a  boundary 
between  the  dominions  of  two  Powers,  implies  that  the  territories  thus 
to  be  divided  are  contiguous.  "  The  verb,  {a  divide^  requires  the  conti* 
guity  of  the  objects  to  be  divided."  A  boundary,  one  hundred  miles 
distant  from  the  waters  of  the  St.  Lawrence,  does  not  divide  those  waters 
from  any  other  rivers  whatever.  The  Highlands  claimed  as  a  boundary, 
on  the  part  of  Great  Britain,  do  divide  the  waters  of  the  Penobscot  from 
those  of  the  St.  John's,  and  not  from  those  of  the  St.  J^awrence.  The 
whole  upper  basin  of  the  St.  John's  intervenes  between  the  Highlands 
claimed  on  the  part  of  Great  Britain  and  the  sources  of  the  St.  Lawrence. 

This  fact  was  perfectly  well  known  to  the  Negotiators  of  the  treaty,  as 
appears  by  Mitchell's  Map,  acknowledged  to  have  been  that  which  gov- 
erned their  joint  and  official  proceedings.  IV  say,  therefore,  that  the 
north-west  angle  of  Nova  Scotia  and  the  boundary,  claimed  on  the  part 
of  Great  Britain,  were  those  which  they  intended  to  designate,  is  to 
suppose,  that  they  knowingly  and  deliberately  did  define  that  angle  and 
that  boundary,  by  designations  known  to  them  not  to  apply  to  the  angle 
and  boundary  which  they  intended  to  define. 

It  has  been  demonstrated  that  the  framers  of  the  treaty  were  possessed 
of  all  the  information  necessary  to  enable  them  to  define  with  precision  the 
position  of  any  north-west  angle  of  Nova  Scotia  and  of  any  boundary 
between  the  two  Powers  which  they  might  have  intended  to  establish  ; 
and  also  that,  had  they  intended  to  adopt  those  claimed  on  the  part  of 
Great  Britain,  this,  with  the  data  in  their  possession,  might  have  been 
effected  in  express  terms,  without  the  slightest  difHculty. 

All  the  preceding  observations  apply  with  equal  force  to  any  other 
point  and  to  any  other  line  whatever,  which  might  be  claimed,  on  the  part 

9 


98 


Recapitulation. 


of  Great  Britain,  as  the  north-west  angle  of  Nova  Scotia  and  the  boon- 
dary  between  the  two  powers,  other  than  the  angle  and  the  boundary 
claimed  by  the  United  States.  No  point  on  the  due  north  line,  other 
than  that  thus  claimed,  or  that  which  divides  the  waters  of  the  St.  John's 
from  those  of  the  Ristigouche,  divides  any  rivers  from  each  other,  but 
tributary  streams  of  one  and  the  same  river,  either  the  St.  John's,  or 
the  Ristigouche.  And  no  point  whatever  on  that  due  north  line,  other 
than  that  claimed  by  the  United  States  as  the  north-west  angle  of  Nova 
Scotia,  divides  the  waters  of  the  St.  Lawrence  from  any  other  rivers 
whatever.  • 

No  boundary  line,  drawn  from  any  point  whatever  on  the  due  north 
line  to  the  source  of  the  River  Chandiere,  other  than  the  line  claimed  by 
the  United  States  as  their  boundary,  can,  through  that  whole  distance  ; 
either  divide  the  waters  of  the  St.  Lawrence  from  any  other  rivers  what- 
ever  ;  or,  if  beginning  at  a  point  on  the  due  north  line  south  of  the  St. 
John's,  divide  any  other  rivers  from  each  other  than  tributary  streams  of 
the  St.  John's  from  those  of  the  Penobscot ;  and,  if  beginning  at  a 
point  north  of  the  St.  John's,  such  boundary  line  cannot  divide  any 
rivers  whatever  from  each  other,  and  will  only  intersect  various  branch- 
es of  the  St.  John's. 

To  assert,  therefore,  that  the  negotiators  of  the  treaty  intended  to  de- 
signate, as  north-west  angle  of  Nova  Scotia  and  boundary  between  the 
two  Powers,  any  other  point  or  line  whatever  other  than  those  claimed 
as  such  by  the  United  States,  is  to  assert,  that  those  negotiators  did 
knowingly  and  deliberately  define  that  angle  and  boundary  in  terms 
known  tp  them  not  to  apply  to  the  angle  and  boundary  which  they  in- 
tended to  define;  that  they  did  deliberately  prescribe  an  angle  and  boun- 
dary which  they  knew  to  be  physically  impossible  ;  that  they  did  deli- 
berately  agree  to  a  treaty  of  boundaries  which  they  knew  could  not  be 
executed. 

There  are,  on  the  due  north  line  drawn  from  the  source  of  the  St.Croix 
and  protracted  to  the  River  St.  Lawrence,  but  two  points  which  divide 
tributary  streams  of  rivers  falling  into  different  estuaries,  viz :  that 
which  divides  the  waters  of  the  St.  John's  from  those  of  the  Ristigouche 
which  falls  into  the  Bay  des  Chaleurs  ;  and  that  which  divides  the  wa- 
ters of  the  Ristigouche  from  those  of  the  River  St.  Lawrence.  As 
Cape  Rosiers  is  acknowledged  to  form  the  southern  extremity  of  the 
mouth  of  that  river,  and  Bay  des  Chaleurs  lies  south  of  that  Cape,  that 
Bay  is  an  inlet  of  the  Gulf,  and  not  of  the  River  St.  Lawrence.  That 
point  on  the  due  north  line,  which  divides  the  waters  of  the  River  St. 
Lawrence  from  the  Ristigouche,  is  therefore,  the  place  prescribed  by  the 
treaty  to  be  the  north-west  angle  of  Nov^  Scotia,  provided  the  Gulf  of 
St.  Lawrence  is  shown  to  be  embraced  by  the  term  "  Atlantic  Ocean," 


Recapitulation. 


99 


boon- 
mdary 
,  other 
John's 
ler,  but 
n's,  or 
e,  other 
r  Nova 
rivers 

e  north 
med  by 
stance ; 
rs  what- 
the  St. 
earns  of 
ng  at  a 
ide  any 
branch- 

;d  to  de- 
jveen  the 
claimed 
tors  did 
n  terms 
they  in- 
id  boun- 
Idid  deli- 
Id  not  be 

Ist.Croix 
[h  divide 
liz :    that 
tigouche 
the  wa- 
Ice.     As 
ly  of  the 
ape,  that 
That 
liver  St. 
[d  by  the 
Gulf  of 
lOcean," 


as  used  in  that  clause  of  the  treaty  which  relates  to  the  rivers  which  are 
to  be  divided. 

The  boundary  claimed  by  the  United  States,  from  that  angle  to  the 
highland  acknowledged  by  both  parties,  which  divides  the  sources  of  the 
Penobscot  from  tuose  of  the  Chandiere,  divides  through  the  whole  ex- 
tent, without  chasm  or  interruption,  the  tributary  streams  of  the  River 
'St.  Lawrence  from  those  of  the  Rivers  Ristigouche  and  St.  John.  It 
is,  in  position,  in  perfect  accordance  with  the  terms  of  the  treaty,  unless 
it  can  be  shown  that,  in  the  clause  last  above  mentioned,  the  term  "At- 
lantic Ocean  "  does  not  embrace  the  Gulf  of  St.  Lawrence  and  the  Bay 
of  Fundy,  into  which  those  rivers  respectively  empty  themselves.  And 
if  those  rivers  are  not,  in  that  clause,  considered  as  Atlantic  rivers,  no 
other  boundary  can  be  found,  which  in  position  will  accord  with  the 
terms  of  the  treaty. 

It  is  contended,  on  the  part  of  Great  Britain,  that  the  boundary  thus 
claimed  by  the  United  States,  wants  the  mountainous  character,  and  the 
visible  elevation  which  she  ascribes  to  the  term  "  highlands."  The  fact 
has  not  been  ascertained,  and,  for  the  present,  will  be  admitted.  But 
it  is  altogether  denied  that  the  term  << highlands  which  divide  rivers" 
implies  such  character. 

The  word  «  highlands  "  is  in  itself  vague  and  indefinite,  and  always 
relative.  For  that  reason,  it  was  an  appropriate  expression,  for  the  pur- 
pose of  designating,  without  reference  to  positive  elevation,  the  ground 
which  divides  rivers,  since  that  ground  is  always  higher^than  the  rivers 
which  flow  from  it  in  different  directions.  But,  used  alone,  it  would 
have  been  altogether  indeterminate  and  unfitted  for  the  designation  of  a 
boundary.  It  is  the  property  of  dividing  certain  specified  rivers,  it  is 
that  inseparable  adjunct  which  defines  the  term  as  used  in  the  treaty  and 
denotes  with  precision  the  intended  boundary. 

Two  contradictory  conditions  are  inadmissible  in  a  definition.  That 
of  dividing  rivers  was  expressed  in  so  many  words,  and  is  therefore  in- 
dispensable. The  contemplated  highlands  must  necessarily  by  the  ex- 
press terms  of  the  treaty  divide  certain  rivers.  No  other  condition  can 
be  imposed  on  the  highlands,  no  implied  meaning  can  be  ascribed  to 
that  word,  which  might  be  contradictory  of  the  first  clear  and  express 
condition.  Nothing  was  known  but  the  general  course  of  the  rivers,  and 
it  was  only  by  referring  to  those  rivers,  that  the  negotiators  could  and 
did  describe  the  boundary.  The  nature  of  the  ground  which  divided  the 
rivers  was  unknown  to  them,  and  it  was  not  explored  till  the  year  1818, 
and  then  only  partially  by  the  surveyors  appointed  under  the  Ghent 
Commission.  And  since  the  negotiators  could  not  divine,  whether 
it  would  be  found  mountainous,  and  with  visible  elevations,  or  not,  the 
supposition  that  the  term  "  Highlands  "  implies  that  condition  is  inad* 


100 


Recapittdation. 


!/■» 


inissible,  sine*  that  second  condition,  might  prove  contradictory  of  the 
first. 

But  it  has,  besides,  been  conclusively  demonstrated  ;  that  the  high- 
lands acknowledged  by  both  paties,  the  Highlands  claimed  by  Great 
Britain,  and  the  Highlands  claimed  by  the  United  States  were  all  desig- 
nated by  Pownall  and  others,  by  the  name  of  "  Height  of  Land,"  which 
lastterm  is  therefore  synonymous  with  that  of ''dividing  Highlands."  And 
multiplied  instances  have  been  given,  that  the  term  "  Height  of  Land" 
is  universally,  and  that  of  Highlands  occasionally,  given  without  refe- 
rence to  mountainous  character  or  visible  elevation,  to  the  ground  which 
divides  rivers,  and  in  which  those  rivers  have  actually  their  sources. 

It  has  been  asserted  in  the  British  Statement  that,  according  to  geo- 
graphical practice,  the  Bay  of  Fund;  is  not  comprehended  in  the  Atlan- 
tic Ocean.  And,  from  the  fact,  that  in  one  clause  of  the  Treaty  which 
does  not  relate  to  the  division  of  rivers,  the  signification  of  the  term  At- 
lantic Ocean,  on  account  of  its  being  there  contradistinguished  from  the 
Bay  of  Fundy,  is  limited  so  as  to  exclude  that  Bay ;  it  is  inferred  that 
it  rnuat  be  limited  in  the  same  manner  in  another  clause  where  that  term 
is  used  in  reference  to  the  division  of  rivers. 

It  has  been  proved  by  a  variety  of  instances,  that,  according  to  geo- 
graphical practice  and  general  usage,  the  term  Atlantic  Ocean  embraces 
its  bays  and  inlets  ;  and  that,  more  particularly  in  reference  to  that  part 
of  the  said  Ocean  adjacent  to  the  American  shores,  it  embraces  both  the 
Bay  of  Fundy  and  the  Gulf  of  St.  Lawrence.  It  has  been  shown  that, 
in  the  Proclamation  of  1763,  reveral  rivers  are  described  as  falling  into 
the  Atlantic  Ocean  which  have  their  mouths  in  the  Bay  of  Chesapeake 
or  in  Albermarle  Sound.  And  it  has  also  been  shown  that,  of  all  the 
rivers  west  of  the  St.  Croix  intended  by  the  treaty  to  be  divided,  there  is 
not  one  which  does  not  fall  into  some  bay  known  by  a  distinct  name ; 
and  particularly,  that  the  Connecticut  falls  into  Long  Island  Sound, 
which  is  an  inlet  of  the  Ocean  more  close  and  of  a  more  distinct  cha- 
racter than  the  Bay  of  Fundy. 

It  is  contrary  to  all  the  rules  of  language,  to  suppose  that  a  word  or 
expression  which  is  susceptible  of  more  than  one  meaning,  or  the  mean- 
ing of  which  may  in  two  different  sentences  of  the  same  instrument  be 
limited  in  two  different  manners,  by  the  different  expressions  united  with 
it,  must  in  both  sentences  have  the  same  meaning.  In  one  Jause  of 
the  treaty,  the  Atlantic  Ocean  is  contradistinguished  from  the  Bay  of 
Fundy,  and  excludes  that  bay  alone.  In  the  other  clause  which  relates 
only  to  the  division  of  rivers,  those  which  fall  into  the  Atlantic  Ocean 
are  contradistinguished  only  from  those  that  empty  then  selves  into  the 
River  St.  Lawrence,  so  as  to  exclude  only  the  last  mentioned  rivers  from 


Recapitulation. 


101 


'  of  the 

te  high- 
r  Great 
1  desig- 
•'  which 
."  And 
■  Land" 
)nt  refe- 
id  which 
rces. 
to  geo- 
,e  Atian* 
ty  which 
term  At- 
from  the 
rred  that 
that  term 

[  to  geo- 
embraces 

that  part 
I  both  the 
own  that, 

ling  into 
lesapeake 

>f  all  the 
there  is 

t  name; 
Sound, 

net  cha- 

.  word  or 
le  rocan- 
nnent  be 
ited  with 
clause  of 
Bay  of 
;h  relates 
ic  Ocean 
into  the 
ers  from 


those  embraced  under  the  general  designation  of  rivers  falling  into  the 
Atlantic  Ocean. 

The  only  semblance  of  probability  in  favour  of  the  erroneous  infer- 
ence, in  the  British  Statement,  would  be  found  in  the  supposition,  that 
there  was  no  reason  for  designating  *'  e  place  in  which  the  St.  Croix 
had  its  mouth  ;  whence  it  might  perhaps,  though  not  very  logically,  be 
inferred,  that  the  designation  was  intended  to  restrain  in  the  other 
clause,  the  ordinary  signification  of  the  term  Atlantic  Ocean,  in  a  dif- 
ferent manner  from  that  in  which  the  term  is  limited  in  that  other  clause 
itself. 

But  it  has  been  shown,  that  the  designation  of  the  Bay  Fundy,  as  the 
particular  inlet  of  the  Atlantic  Ocean,  in  which  the  River  St.  Croix 
had  its  mouth,  might  have  been  naturally  borrowed  from  that  adopted  in 
all  the  previous  public  British  Acts  ht'ving  reference  to  that  River.  And 
it  has  been  demonstrated,  that  there  was  a  cogent  reason  for  making  that 
designation  in  the  treaty,  in  order  to  guard  against  any  pretension,  on  the 
part  of  Great  Britain,  to  claim  the  Penobscot  or  any  other  river  west  of 
the  Bay  of  Fundy,  as  the  River  St.  Croix  contemplated  by  the  treaty. 

It  has  further  been  demoi|istrated,  that  the  soi'thern  boundary  of  the 
Province  of  Quebec,  as  established  by  the  Proclamation  of  1763  and 
by  the  Quebec  Act,  is  identic  with  that  portion  of  the  boundary  of  the 
United  States  which  divides  rivers.  The  only  difference  consists,  in 
the  substitution  in  the  treaty,  of  the  words  Atlantic  Ocean,  instead  of 
the  word  Sea  used  in  the  proclamation.  Those  words  in  relation  to 
America  are  synonymous,  since  no  other  portion  of  the  Sea  washes  the 
American  shore  but  the  Atlantic  Ocean.  And  it  has  been  shown  that 
they  were  used  as  such  in  several  instances,  and  even  in  another  part 
of  the  proclamation  itself.  The  reference  in  the  treaty  to  the  north- 
west angle  of  Nova  Scotia  puts  that  identity  beyond  a  doubt.  The  de- 
scription of  that  angle  was  foreign  to  the  purposes  of  the  treaty,  which 
had  for  its  sole  object  to  determine  the  boundaries  of  the  United  States,  and 
not  the  boundary  between  Nova  Scotia  and  Canada,  which  forms  one  of 
the  sides  of  the  north-west  angle  of  Nova  Scotia.  The  description  there- 
fore of  that  angle  could  only  be  in  reference  to  an  angle  previously  pre. 
scribed  by  the  public  acts  of  Great  Britain ;  and  it  was  thus  prescribed 
by  the  Proclamation  of  1763  and  the  Commissions  of  the  Governors  of 
Nova  Scotia  subsequent  to  that  date. 

That  the  southern  boundary  of  Canada,  as  established  by  the  procla. 
mation  of  1763  was  at  the  time  and  till  after  1783,  universally  meant 
and  understood  to  be  the  same  with  the  boundary  now  claimed  by  the 
United  States,  is  undeniable  and  has  been  fully  established  by  the  coin- 
cidence in  that  respect  of  all  the  maps  published  iu  England  between 
the  years  1763  and  17S3.     The  irrelevancy  of  the  fact,  that  some  leases 

9* 


:  ?• 


III 


102 


Recapitulation. 


,  1 


of  the  fief  of  Madawaska  which  lies  on  the  river  of  that  name  have 
been  recorded  at  Quebec,  and  of  an  order  forbidding  Canadians  to  hunt 
on  the  Indian  grounds  of  the  St.  John,  for  the  purpose  of  proving  a 
different  understanding  on  the  part  of  the  Canadian  Authorities,  has 
been  shown. 

It  has  been  urged,  that  it  was  impossible  that  Great  Britain,  after  har-r 
ing  rejected  the  proposal  of  making  the  St.  John  the  boundary,  should 
have  agreed  to  that  now  claimed  by  the  United  States,  thereby  yielding  a 
larger  territory  than  had  been  asked  by  America  and  the  communication 
between  Nova  Scotia  and  Quebec.  This  inference,  which  cannot  in 
any  case  be  urged  against  the  express  terms  of  the  treaty,  has  also  been 
refuted  by  the  following  facts  and  arguments. 

The  respective  extent  of  the  territories  has  been  calculated  on  the 
part  of  Great  Britain,  by  the  map  A,  agreed  to  by  both  parties  in  1827, 
and  derived  from  surveys  made  thirty  years  after  the  date  of  the  treaty. 
Calculated  by  Mitchell's  map,  the  territory  which  would  have  fallen  within 
thb  United  States  had  the  River  St.  John  been  made  the  boundary,  must 
have  been  supposed  greater  than  that  contained  within  the  boundary 
now  claimed  by  them.  In  point  of  value  that  of  the  territory  between 
the  St.  Croix  and  the  St.  John  was,  on  account  of  its  proximity  to  the 
Sea  Coast  as  well  as  of  its  soil,  without  comparison,  far  greater  than  that 
of  the  country  situated  north  of  the  River  St.  John  and  west  of  the  due 
north  lint. 

The  southern  boundary  of  Canada,  adopted  by  the  treaty,  was  estab- 
lished in  1763,  when  the  object  was  to  include  the  French  settlements 
within  the  basin  of  the  River  St.  Lawrence ;  and  when  it  was  a  matter 
of  indifference  to  Great  Britain,  whether  the  communication  between 
Quebec  and  Nova  Scotia  was  through  Massachusetts,  then  one  of  her 
Colonies. 

It  hbs  been  shown  that  the  claim  of  Massachusetts  under  ner  charter, 
though  questioned  by  Great  Britain,  must  have  had  a  considerable  influ« 
ence  on  the  deliberations  of  the  negotiators,  since  the  relinquishment 
by  his  Britannic  Majesty  of  the  territories  of  the  respective  colonies  makes 
part  of  the  first  article  of  the  treaty  by  which  he  recognises  their  inde* 
pendence. 

Above  all,  it  is  in  proof,  that  the  British  Negotiator,  in  the  provision- 
al articles  of  1782,  ratified  verbatim  by  the  definitive  Treaty  of  1783, 
did  yield  the  pretensions  of  Great  Britain  towards  the  east,  t^e  north  and 
the  west,  on  the  express  condition,  that  the  secret  article,  not  till  lately 
ever  published,  should  be  added ;  which,  on  the  contingency  of  Great 
Britain  retaining  Florida,  yielded  to  her  and  took  from  the  United  States 
twenty  millions  of  acres ;  a  territory  three  times  as  large  as  that  which 
is  now  contested,  and  far  more  valuable  as  to  soil,  climate,  and  situation. 


RecapUulation. 


103 


has 


Finally :  it  is  couclusirely  demonstrated  by  Mitchell's  map  and  by 
the  coincidence,  in  that  respect,  of  all  the  maps  published  in  England 
between  the  years  1755  and  1783,  that  the  negotiators  had  all  the  topo- 
graphical knowledge  necessary  to  enable  them  to  define  with  precision 
any  boundary  which  they  intended  to  establish.  The  undeniable  truth 
of  that  fact  may  be  verified  at  once  by  comparing  Mitchell's  Map  with 
Map  A,  with  the  terms  of  the  treaty,  and  withtb?  boundaries  respectively 
claimed  by  the  two  Powers. 

It  is  impossible  to  assign  any  satisfactory  reason,  why,  with  that  know- 
ledge, the  negotiators,  if  they  intended  to  designate  the  boundary  claim- 
ed on  the  part  of  Great  Britain,  did  describe  it  in  such  terms  as  those  of 
the  treaty.  It  is  preposterous  to  suppose  that^  with  that  knowledge,  they 
should  have  believed,  that  the  retention  of  the  term  Atlantic  Ocean  did 
express  that  presumed  intention.  And  no  terms  could  have  been  adopt- 
ed more  clear,  precise,  and  appropriate  than  those  of  the  treaty,  for  the 
purpose  of  describing  the  boundary  claimed  by  the  United  States. 


I  charter, 
tie  influ« 
lishment 
makes 
lir  inde- 


I 


Dvision- 
\{  1783, 
}rth  and 
[11  lately 
If  Great 
Id  States 
It  which 
Ituation. 


t  : 


APPENDIX 


:i<i 


APPENDIX, 


No.  1. 

Actii  of  Jurisdiction  and  opinions  entertained  subsequent  to  iho 

year  1783. 

It  is  not  perceived,  how  either  any  acts  of  jurisdiction  exercised  by 
either  party  over  the  contested  territory  after  the  date  of  the  treaty  of 
1783,  or  any  opinions  entertained  subsequent  to  that  time  by  officers  of 
either  Government,  or  by  any  other  individuals,  can  have  any  effect  on 
the  terms  of  the  treaty,  or  throw  any  light  on  the  intentions  of  the  Ne« 
gotiators.  Yet,  as  an  appeal  has  been  made  to  them  on  the  part  of 
Great  Britain,  a  review  of  both  may  not  be  altogether  omitted. 

Several  documents  have  been  adduced,  on  the  part  of  Great  Britain, 
with  a  view  to  prove  that,  subsequent  to  the  Treaty  of  1763,  the  Govern- 
ments of  Canada  and  of  New  Brunawick  have  both  exercised  jurisdic* 
tion  over  the  contested  territory.  The  irrelevancy  of  those  relating  to 
the  fief  of  Madawaska,  which  may  have  taken  place  since  that  time, 
has  already  been  shown.  But  it  appears  ;  that  in  the  year  1784,  a  na- 
tiva  Indian  was  tried  and  convicted  by  a.  court  of  the  Province  of  Que- 
bec, and  accordingly  executed  for  a  murder  commi*  .id,  as  was  suggest- 
ed, on  the  waters  of  the  River  St.  John ;  that  between  the  years  1789 
and  1791,  two  suits  were  instituted  and  judgment  obtained,  before  the 
Courts  of  Quebec  by  some  inhabitants  of  Canada  against  persons  re- 
siding on  the  River  Madawaska ;  that  an  extract  from  a  list  of  the 
parishes  in  the  Province  of  Quebec,  taken  from  the  minutes  of  the 
Executive  Council  for  1791,  includes  that  of  Madawaska ;  and  that,  in 
the  year  1785,  that  Council  issued  an  order  for  opening  a  road,  from 
Kamarouska  on  the  River  St.  Lawrence  to  Lake  Temisquata,  which 
lies  on  the  south-eastern  side  of  the  dividing  highlands,  claimed  as  their 
boundary  by  the  United  States.  It  will  be  admitted  that  those  acts 
taken  together  afford  sufficient  proof  of  the  desire  and  perhaps  a  hope 
at  that  time,  that  the  jurisdiction  of  the  Province  of  Quebec  might  be 
extended  over  the  upper  branchf-s  of  the  River  St.  John. 

The  following  transactions  throw  a  clearer  light  on  the  views  both  of 
that  Government  and  of  that  of  New  Brunswick. 


I'l 


i 


1 

1' 

il 

s 

N 

'  I  i 

1 

mk 

108 


Subsequent  to  1783. 


m  i;; 


In  the  year  1787,  Mr.  Holland  was  ordered  by  the  Governor  of  the 
Province  of  Quebec,  to  proceed  to  the  Great  Falls  on  the  River  St. 
John,  in  order  to  meet  the  Surveyor  General  of  New  Brunswick,  and 
to  assist  in  marking  out  the  boundary,  where  it  ssed  the  road  of  com- 
munication between  the  two  Provinces.  In  the  interview  which  took 
place  between  them,  each  party  was  able  to  prove,  that  the  territory  in 
question  was  not  within  the  limits  of  the  other  Province. 

The  surveyor  of  New  Brunswick,  in  conformity  with  his  instructions 
from  the  Governor  of  that  Province  directing  him  to  be  governed  by 
the  Quebec  Act,  insisted  that  those  streams  alone  which  fall  into  the 
River  St  Lawrence  were  in  t  3  Province  of  Quebec,  and  that  those 
which  were  tributary  streams  of  the  River  St.  John  were  in  the  Pro- 
vince of  New  Brunswick.  And  he  declared  that  he  would  proceed  to 
the  height  of  land  on  the  carrying  place,  situate  between  the  River  St. 
Lawrence  and  Lake  Temisquata,  in  order  to  examine  which  way  the 
waters  incline  on  the  heights  there,  that  by  their  course  he  might  be  en- 
sLled  to  ascertain  the  boundary  between  the  Provinces  of  Quebec  and 
New  Brunswick. 

On  the  other  hand,  although  it  could  not  be  kuowL  with  any  certain- 
ty, at  that  time,  where  the  due  north  line  from  the  source  of  the  River 
St.  Croix  would  strike  the  Highlands,  it  was  highly  improbable  that  the 
point  of  intersection  would  be  found  as  far  west  as  the  Temiskouata 
Portage.  Mr.  Holland,  after  urging  some  other  considerationa,  accor- 
dingly represented,  <*  more  especially,  that  the  fixing  that  limit  would 
tnaterially  affect  the  boundai'y  beticeen  ua  and  the  United  States  of  Ameri- 
ca ;  and  that  a  large  territory  ivoidd  thereby  be  saved,  or  lost  to  His 
M.ajesty's  dominions." 

A  safe  and  convenient  communication  between  the  two  Provinces 
was  at  all  events  to  be  preserved  :  and  how  to  alter  for  that  purpose  the 
boundary  of  the  United  States,  as  defined  by  the  treaty  oi'  1783,  was  the 
difficulty.  Mr.  Holland  appears  to  be  entitled  to  the  credit  of  having 
been  the  first  to  propose  the  substitution  of  a  "  country  extremely  moun- 
tainous," to  the  dividing  Highlands  designated  by  that  treaty.  He  ob*^ 
served  that  it  was  generally  understood  in  Canada,  "  that  the  line  be- 
tween the  Provinces  of  Quebec  and  New  Brunswick,  should  run  from 
the  head  of  Chaleur  Bay,  along  the  Highlands,  in  a  westerly  direction 
to  the  Great  Falls  on  the  St.  John-s  River,  and  from  thence  west,  to 
the  westernmost,  or  main  branch  of  the  Connecticut  River." 

Mr.  Holland  had  not  at  that  time,  any  knowledge  of  the  country  : 
but  he  did  not  fail  to  find  it  agreeing  precisely  with  his  hypothesis.  Not 
being  able  to  agree  with  the  Surveyor  of  New  Frunswick,  he  proceeded, 
he  says,  with  his  party  "  to  the  Great  Fails,  where  we  found  the  country 
extfemely  mountainous ;  and,  from  information  gathered  from  differexit 


M* 


Acts  of  Jurisdiction, 


109 


Irovmces 
rposc  the 
was  the 
having 
\y  mouu- 
He  ob. 
line  be- 
in  from 
lirection 
west,  to 

country : 
lis.  Not 
loceeded, 
country 
IdifTereut 


persons,  who  have  been  from  the  St  John's  River  back  in  the  cuntry, 
and  my  own  observations,  have  no  doubt  but  that  these  mountains  are 
the  range  which  extend  from  the  Bay  of  Chaleur  to  that  River." 

Thi.:fi  substitution,  (called  a  definition)  of  a  generally  or  extremely 
"  mountainous  country,"  without  regard  to  the  division  of  certain  speci- 
fied rivers,  to  the  <<  Highlands  which  divide  the  rivers,"  &c.  has  the 
singular  advantage  of  rendering  them  moveable  at  will.  And  it  cannot 
be  doubted  that,  had  the  British  Agent  under  the  Ghent  commission  been 
from  Canada,  instead  of  New  Brunswick ;  the  raountainous  country, 
extending  westwardly  from  the  Great  Falls,  would  have  been  pertina- 
ciously contended  for  in  behalf  of  Great  Britain,  instead  of  insisting,  as 
according  to  his  hypothesis  has  been  done,  that  the  height  ofland,  con- 
templated by  the  framers  of  the  treaty,  commences  at  Mars  Hill. 

A  committee  of  the  Executive  Council  of  the  Province  of  Quebec, 
appointed  the  same  year,  (17S7)  to  consider  that  subject,  appears  not  to 
havp  sustained  to  its  full  extent  Mr.  Holland's  report,  and  to  have  been 
of  opinion  that,  in  order  to  extend  the  jurisdiction  of  Canada  over  the 
River  St.  John,  an  alteration  of  its  existing  southern  boundary  was  ab- 
solutely necessary. 

They  say,  "  If  the  Province  of  New  Brunswick  may  of  right  claim 
the  sources  of  rivers  that  take  their  rise  on  the  height  of  land  which  di- 
vides the  rivers  that  empty  themselves  into  the  St.  Latorence,  from  those 
which  fall  into  the  Atlantic  Ocean,  the  anct'en^  limits  of  this  Government 
will  be  curtailed  towards  New  Brunswick,  and  Seigneuries  under  Cana- 
dian grants,  as  far  back  as  the  years  1623  and  1683,  be  taken  into  that 
Province,"  &c. 

The  committee  then  propose  «  that  the  Province  of  Quebec  be  sepa- 
rated from  that  of  New  Brunswick,  by  a  line  running  along  the  High- 
lands, which  extend  from  the  heud  of  Chaleurs  Bay  to  the  foot  of  the 
Great  Fall  of  St.  John's  River,  and  from  thence,  crossing  the  river,  (so 
as  to  include  the  whole  of  the  portage  or  carrying  place)  and  continuing 
in  a  straight  line  towards  the  sources  of  the  River  Chandiere,  which 
rise  on  the  Highlands,  vvhich  commence  at  the  said  head  of  the  Bay  of 
Chaleurs,  and  extend  all  the  way  to  the  north-westernmost  head  of  Con- 
necticut River." 

It  is  clear,  that  the  committee  of  the  Executive  Council  of  the  Pro- 
vince of  Quebec  wa  i  quite  sensible  that  the  southern  boundary  of  that 
Province,  as  defined  in  the  Commissions  of  its  Governors,  would  cur- 
tail the  ancient  limits  of  Canada,  as  it  existed  under  the  French  Govern- 
ment. What  they  propose  is  a  substitution  of  Mr.  Holland's  hypotheti. 
cal  Highlands  for  those  that  had  been  designated  by  the  Proclamation  of 
1763,  by  the  Quebec  Act  of  1774,  by  the  treaty  of  1783,  and  by  ail  the 
Commissions  of  the  Governors  of  the  Province,  as  its  southern  boun- 

10 


no 


Subsequent  to  1783. 


IvS 


dary.  They  ask  accordingly  that  the  Province  of  Quebec  be  separated 
(hereafter)  from  the  Province  of  New  Brunswick  by  Mr.  Holland's  pre- 
sumed Highlands. 

The  admission  that  the  change  could  not  be  effected,  without  an  al- 
teration of  the  boundaries  prescribed  by  the  Acts  of  the  British  Govern- 
ment, is  tantamount  to  au  acknowledgment  that  an  alteration  of  the 
terms  of  the  treaty  was  necessary  for  that  purpose  ;  since  the  same  de- 
scriptive words  are  used  in  those  Acts  and  in  the  treaty. 

The  conflict  between  the  two  Provinces  on  that  occasion,  and  the  con- 
fused arguments  alleged  on  both  sides,  arose  solely  from  their  mutual 
wish,  to  appropriate  to  themselves  what  belonged  to  another  party,  and 
from  the  impossibility  of  reconciling  the  pretensions  of  either  with,  not 
only  the  treaty  of  1783,  but  all  the  public  acts  of  Great  Britain  relating 
to  those  boundaries. 

Those  documents,  together  with  some  others,  were  taken  into  con. 
sideration  by  the  Executive  Council,  on  the  4th  August,  1792.  And  it 
was  thereupon  "  Ordered  that  these  papers  be  entered  upon  the  minutes, 
and  it  is  humbly  suggested  by  the  board,  that  it  may  be  expedient  to 
transmit  copies  to  the  Lieut.  Governor  of  the  Province  of  New  Bruns- 
wick for  his  co-operating  in  representations  to  call  the  attention  of  his 
Majesty's  Ministers  to  ihe  adifistment  of  the  limits  necessary  for  pre- 
serving the  public  tranquillity  on  the  borders  of  both  Provinces." 

It  is  not  known  to  the  American  Government,  whether  any  decision 
was  had  on  that  subject  by  that  of  Great  Britain,  or  whether  the  aban- 
donment of  that  pretension,  on  the  part  of  the  Province  of  Canada,  was 
the  natural  consequence  of  the  favorable  change  which,  in  the  year  1794, 
took  place  in  the  relations  between  the  two  countries.  But  the  fact  is 
certain,  that  not  a  single  subsequent  act  of  jurisdiction  over  the  con- 
tested territory,  by  Canada,  has  been  adduced  in  evidence,  (as  certainly 
would  have  been  done  had  any  such  existed,)  or  is  known  to  have  taken 
place. 

It  is  on  the  contrary  in  proof,  that  no  grants  of  land  have  been  made 
by  the  British  Government  of  Canada,  on  the  waters  of  the  River  St. 
John,  or  beyond  the  dividing  highlands  claimed  as  their  boundary  by 
the  United  Stales.  And  it  is  also  proved,  by  the  concurrent  testimony 
of  the  inhabitants  on  the  Madawaska  River,  that  the  Mount  St.  Francis, 
which  divides  the  waters  h.  .iie  Temiscouata  Portage,  has,  for  more  than 
thirty  years,  been  considered  as  the  boundary  of  Canada,  and  the  place 
beyond  which  no  process  issuing  from  that  Province  can  be  served. 

Great  Britain,  on  the  plea  of  certain  infractions  of  the  treaty  of  1783 
alleged  by  her  to  have  been  committed  on  the  part  of  the  United  States, 
had  suspended,  on  her  part,  the  execution  of  those  conditions  of  the 
treaty,  respecting  boundaries,  which  had  not  been  carried  into  effect  im< 


dels  of  Jurisdiction. 


Ill 


mediately  after  its  conclusion.  It  was  only  by  virtue  and  in  conse. 
quence  of  the  treaty  of  1794,  that  she  surrendered,  and  abandoned  her 
jurisdiction  over  several  posts  and  countries,  within  the  boundaries  of 
the  United  States,  of  which  she  had  remained  in  possession  ever  since 
the  year  1783. 

It  is  therefore  probable,  that  during  the  state  of  suspension  and  doubt, 
that  existed  with  respect  to  the  boundaries  between  the  years  17S3  and 
1794,  the  Governor  of  Canada,  who  had  certainly  orders  not  to  surren- 
der the  Western  posts  and  territory,  entertained  the  hope  that  the  condi- 
tions of  the  treaty  would  never  be  fulfilled,  and  thinking  it  a  favorable 
opportunity,  made  the  attempt  of  extending  his  jurisdiction  and  actual 
possession  in  another  quarter.  It  is  certain  that  from  that  time  to  this 
day,  the  attempt  has  not  been  renewed  by  the  Government  of  that  Pro- 
vince. 

The  grants  <f  land  to  the  Madawaska  settlers,  and  the  jurisdiction  ex- 
ercised over  them,  by  the  Government  of  New  Brunswick,  are  no  evi- 
dence of  there  having  been  an  intention  prior  to  the  treaty  of  Ghent,  on 
the  part  of  that  Government,  to  extend  its  jurisdiction  over  the  contest- 
ed territory. 

The  remote  situation  of  an  Acadian  village,  which,  as  laid  down  in 
Bellin's  and  in  Mitchell's  Maps,  was  at  first  on  an  Eastern  branch  of 
the  River  St.  John,  near  the  Lake  Freneuse  or  Grand  Lake,  preserved 
its  inhabitants  from  being  transported  and  dispersed  with  the  rest  of  the 
original,  or  French,  inhabitants  of  Acadia.  They  appear  subsequently, 
to  have  had  their  village  on  the  river,  ten  miles  above  the  present  site  of 
Fredericton  :  and  they  removed  thence,  upwards,  towaids  the  mouth  of 
the  River  Madawaska,  when  the  British,  aftci  the  treaty  of  1783,  extend- 
ed their  settlements  up  the  River  St.  John.  They  had  always  resided 
within  the  acknowledged  boundaries  of  the  British  Province  of  Nova 
Scotia,  now  New  Brunswick ;  and  had  never  before  submitted  to  the 
British  Government. 

The  question  respecting  the  true  River  St.  Croix,  was  then  undeci- 
ded. It  was  impossible  to  know  where  the  due  North  line  from  the 
source  of  that  river  would  intersect  the  highlands.  Under  the  belief  that 
the  ^'^estern  branch  of  the  Schoodic  would  be  declared  to  be  the  true  St. 
Croix,  and  if  placing  reliance  on  Mitchell's  l&ngitudes,  the  due  North 
line  would  be  supposed  to  pass  West  of  the  Madawaska  Settlement. 

An  apology  may  be  found  in  that  circumstance,  for  the  issuing  of 
those  grants,  and  even  for  the  jurisdiction  exercised  by  New  Brunswick, 
so  long  as  the  due  North  line  was  not  ascertained.  It  is  only  since  the 
actual  survey  of  that  line,  in  the  year  1817,  1818,  that  the  continued  ex- 
ercise of  that  jurisdiction  must  be  considered,  and  has  been  complained 
of,  as  an  unjustifiable  usurpation. 


ill 


112 


Subsequent  to  1783. 


\f  lit:;  :* 


■  It  is  proper  further  to  observe,  that  the  Government  of  New  Bruns- 
wick has,  at  no  time,  granted  any  lands  in  the  contested  territory,  ex- 
cept to  those  Acadians,  nor  to  any  persons  whomsoever,  from  the  year 
1794  till  the  year  1825. 

No  stress  can  be  laid  on  the  acts  of  either  party  subsequent  to  the 
treaty  of  Ghent,  in  relation  to  the  contested  territory  which  from  that 
time  became  an  avowed  subject  of  discussion. 

The  grant  of  a  tract  of  land  in  the  year  1826,  and  the  subsequent  ar- 
rest and  trial  of  an  American  citizen,  have  afforded  just  grounds  of  com- 
plaint. But  it  is  remarkable,  that  those  very  acts  afford  an  additional 
proof  of  that  inconsistency  which  naturally  grows  out  of  the  British  pre- 
tension. 

No  act  of  the  province  of  New  Brunswick  could  make  a  place  which 
lay  West,  to  be  East  of  the  due  North  line,  nor  therefore  remove  the  dis- 
trict occupied  by  the  Madawaska  settlers  within  the  boundaries  of  the 
Province. 

The  only  thing  which  is  decisively  proved  by  those  acts  is,  that  in  the 
opinion  of  the  New  Brunswick  authorities,  the  contested  territory  is  not 
within  the  boundaries  of  Canada.  And  they  do  not  seem  to  have  per- 
ceived, that  this  was  tantamount  to  an  acknowledgment  that  it  did  belong 
to  the  United  States,  For,  if  not  in  Canada,  it  is  because  the  pretend, 
ed  highlands,  extending  from  Mars  Hill  to  the  North. westernmost 
source  of  tho  Penobscot,  are  not  the  Southern  boundary  of  that  Pro- 
vince. 

And  since  the  Southern  boundary  of  Canada  is  identic  with  theNorth- 
ern  boundary  of  the  United  States,  if  that  boundary  is  North  of  those 
presumed  highlands,  the  territory  lying  South  of  it,  makes  part  of  the 
United  States. 

Of  this  the  British  Government  seems  at  last  to  have  become  aware. 
Hence  the  effoii,  with  the  aid  of  the  fief  of  Madawaska,  and  of  some 
ancient  attentpts  which  have  not  been  renewed  for  more  than  thirty 
years,  to  substitute  for  the  usurped  jurisdiction  of  New  Brunswick,  a 
pretended  possession  derived  from  Canada. 

Accordingly,  in  the  "  msp  of  the  British  Possessions  in  North 
America,  compiled  from  documents  in  the  Colonial  Department,"  and 
ordered  to  be  printed  in  June,  1827,  by  the  House  of  Commons,  the 
due  Myrth  line  is  made  to  terminate  at  the  Ristigouche  River ;  the 
boundary  line  between  the  United  States  and  Canada  is  laid  down, 
according  to  the  British  pretension,  from  Mars  Hill  to  the  western 
source  of  the  Penobscot ;  and  all  that  lies  north  of  that  boundary  and 
west  of  the  due  north  line,  including  the  Madawaska  Settlement,  is 
made  part  of  Canada  and  not  of  New  Brunswick. 

But,  whilst  trying  to  avoid  the  inconsistency  growing  out  of  the 


?  fl 


Acts  of  Jurisdiction. 


113 


North 
t,"  and 
Ins,  the 
tr ;  the 
down, 
western 
ry  and 
;nt,  is 

of  the 


usurped  jurisdiction  of  N^e'.v  Brunswick,  the  Colonial  Department  was, 
from  the  nature  of  the  British  pretension,  necessarily  drawn  into  another. 

It  is  in  proof  that  the  western  and  northern  boundaries  of  New 
Brunswick,  and  the  southern  boundary  of  Canada  have  not  been  alter- 
ed since  the  treaty  of  17S3 ;  that  the  legal  north-west  angle  of  New 
Brunswick  is  identic  with  the  north-west  angle  of  Nova  Scotia,  estab- 
lished in  the  year  1763,  and  referred  to  and  de6ned  in  the  treaty  of 
1783  ;  and  that  that  angle  is  accordingly  at  the  point  of  intersection  of 
the  due  north  line  with  the  Highlands  designated  by  the  treaty  and 
forming  the  southern  boundary  of  Canada. 

Instead  of  being  on  any  highland,  the  north-west  angle  of  New  Bruns- 
wick is,  in  the  map  in  question,  placed  in  the  bed  of  the  River  Risti- 
gouche.  And,  forgetting  that,  by  the  treaty,  the  summit  of  the  north- 
west angle  of  Nova  Scotia  was  also  the  summit  of  the  north- 
east angle  of  the  United  States,  the  Colonial  Department  has  placed  that 
north-east  angle  at  Mars  Hill,  fifty  miles  south  of  the  point  where  it 
places  the  north-west  angle  of  New  Brunswick  or  Nova  Scotia.  Mar» 
Hill,  the  pretended  north-east  angle  of  the  United  States,  so  far  froa 
being  the  north-west,  is  not  even  one  of  the  angles  of  New  Brunswick, 
but  only  a  point  on  one  of  its  boundary  lines. 

The  same  contradiction  attaches  to  the  legitimate  acts  of  New  Bruns- 
wick, in  reference  to  the  territory  within  its  acknowledged  boundaries. 
The  jurisdiction  of  the  Province  has  uniformly  been  exercised  as  far 
north  as  the  Ristigouche  ;  and  its  practical  north-west  angle,  placed  as 
far  north  of  the  pretended  north-east  angle  of  the  United  States,  as  in 
the  map  of  the  Colonial  department. 

It  has  been  asserted  in  the  British  Statement,  that  the  right  to  the 
possession  of  the  contested  territory,  was  first  called  in  question  by  the 
United  States,  and  that  only  constructively,  at  the  period  of  the  negotia- 
tions ot  Ghent,  in  1814. 

The  right  of  Great  Britnin  to  the  territory,  had  never  been  called  in 
question,  by  the  United  States,  before  the  negotiations  at  Ghent,  in 
1814,  because  it  was  then,  for  the  first  time,  made  known  to  them  that 
Great  Britain  intended  to  set  up  such  a  claim.  And  her  right  to  the 
possession  of  the  Madawaska  Settlement  was  not  called  in  question,  or 
even  alluded  to  at  Ghent,  because  it  had  not  been  ascertained  at  that 
time,  whether  that  settlement  lay  east  or  west  of  the  line  drawn  due 
north  from  the  source  of  the  St.  Croix. 

That  line  was  not  surveyed  till  the  years  1817^.1818  :  and  this  is 
also  the  reason  why  the  inhabitants  of  Madawnska  were  included  in  the 
American  Census  of  the  year  1820,  and  not  in  that  of  the  year  1810. 

The  remoteness  of  the  territory  on  the  waters  of  the  River  St.  John 
from  the  American  Settlements,  which  did  not  extend  far  up  the  Peuob- 

10* 


10. 


114 


Subsequent  to  1783. 


J 


scot,  had  rendered  other  acts  of  jurisdiction,  on  the  part  of  the  United 
States,  unnecessary,  prior  to  the  war,  which  was  terminated  by  the 
Treaty  of  Ghent.  And  their  subsequent  forbearance,  since  that  ques- 
tion has  become  a  subject  of  discussion,  notwithstanding  the  continued 
usurpption  of  New  Brunswick  over  the  contested  territory,  is  vsry  im- 
properly  converted  into  an  assertion  of  exclusive  and  undisturbed  pos- 
session, by  Great  Britain. 

On  the  question  of  right,  it- was  not  even  sufipected,  that  there  did,  or 
could,  exist  any  doubt.  The  boundary  is  laid  down  in  all  the  maps  of 
the  District,  now  State  of  Maine,  along  the  true  highlands  designated 
by  the  treaty.  There  was  no  hesitation  or  doubt  on  the  subject,  on  the 
part  of  Massachusetts.  She  granted  lauds,  as  a  matter  of  course,  in 
that  as  well  as  in  every  other  part  of  her  territory. 

As  early  as  the  year  17^2,  a  contract  was  entered  irto,  between  the 
State  and  certain  individuals,  for  the  sale  of  a  tract  of  land  containing 
more  than  two  millions  of  acres,  and  extending  to  the  very  highlands  in 
question.  Although  the  conditions  of  the  agreement  were  not  fulfilled 
by  the  purchasers  and  it  was  not  ultimately  carried  into  effect,  this  tract 
or  another  substituted  for  it,  appears  to  have  been  surveyed,  (o)  Actual 
grants  of  land  were  afterwards  made  by  the  State,  and  as  late  as  the 
year  1C13,  to  various  academies,  towns,  and  individuals. 

The  obscure  acts  by  which  Canada  had,  during  the  years  1784 — 1794, 
attempted  to  extend  her  jurisdiction  over  the  upper  waters  of  the 
River  St.  John,  and  the  application  by  the  council  of  that  Province,  for 
an  alteration  of  its  boundaries,  had  remained  of  course  entirely  un- 
known to  the  Government  of  the  United  States.  And  it  was  at  Ghent, 
in  the  year  1814,  that  any  pretension  to  the  contested  territory  was,  for 
the  first  time,  suggested  by  the  Government  of  Great  Britain.  If  any 
further  proof  was  wanted  to  establish  that  fact,  it  will  be  found  in  the 
manner  in  which  that  claim  was  brought  forward  in  the  course  "f"  *"  those 
negotiations. 

From  all  that  precedes,  it  appears  that  the  easy  access  from  the  settle- 
ments of  New  Brunswick  to  that  of  Madawaska,  enabled  the  government 
of  that  Province  to  extend  its  jurisdiction  over  that  settlement,  at  a  time 
when  it  might  have  been  presumed  that  it  would  be  found  to  lie  east  cf 
the  yet  unascertained  due  north  line,  and  be  therefore  included  within 
the  acknowledged  boundaries  of  the  Province.  New  Brunswick  con- 
tinued in  the  undisturbed  possession  during  more  than  twenty-five 
years,  till  1817,  when  the  due  north  line  was  surveyed.  If  under  those 
circumstances,  Great  Britain  might  be  allowed  to  continue  in  posses- 
sion, although  the  Madawaska  Settlement  was  clearly  without  the  boun- 


(a)  That  survey  is  most  incorrectly  delineated  on  Greenleafs'  Map  of  Maine. 


Opinions  Enlertained. 


US 


daries  of  New  Brunswick,  and  made  part  of  the  contested  territory  ;  the 
claim  to  preserve  the  possession  thus  acquired,  till  the  difTerence  be< 
tween  the  two  Powers  was  settled,  could  not,  under  any  view  of  the  case, 
be  extended  beyond  that  which  was  then  in  actual  possession.  The 
acts  of  jurisdiction,  ou  the  part  of  the  New  Brunswick  authorities  over 
any  other  part  of  the  contested  territory,  exercised  also  beyond  the  ac- 
knowledged western  boundary  of  the  Province,  are  acts  of  ursurpation, 
eminently  calculated  to  produce  irritation  and  collisions  ;  and  they  have 
endangered  those  friendly  relations  subsisting  between  the  two  counties, 
which  every  man  of  sense  in  both  is  most  anxious  to  preserve.  It  is 
hardly  necessary  to  add,  that  possession  thus  obtained  and  continued, 
cannot,  in  the  slightest  degree,  affect  the  rights  of  the  United  States 


settle- 
rnment 

a  time 
I  east  of 

within 
tk  con- 

ity-five 

\r  those 

jposses- 

boun- 

laine. 


The  opinions  expressed  by  public  officers  and  individuals  during  the 
periocV  which  elapsed  between  the  Treaty  of  1783  and  that  of  Ghent, 
will  now  be  stated  as  far  as  they  are  known. 

Great  stress  has  been  laid,  on  the  part  of  Great  Britain,  on  the  ex- 
pressions used  concerning  the  highlauds  contemplated  by  the  Treaty  of 
1783,  by  Mr.  Sullivan,  the  Agent  of  the  United  States  before  the  com. 
mission  for  determining  the  true  River  St.  Croix. 

That  gentleman  did,  indeed,  deny  that  the  boundary  prescribed  by  the 
Proclamation  of  1763,  could  have  had  any  influence  on  the  minds  of 
the  commissiraers  in  1783  ;  and  that  this  opinion  was  incorrect,  has, 
it  is  believed,  been  sufficiently  proved  in  the  preceding  pages.  What 
he  said  on  the  subject  of  the  highlands  is  as  follows  : 

"  It  was  found  at  a  very  early  period  that  the  rivers  flowed  from  the 
southward  into  the  River  St.  Lawrence,  and  from  the  northward  into 
the  Atlantic  Ocean.  This  raised  a  reasonable  conjecture  that  there 
was  a  ridge  of  highlands  which  divided  those  rivers  from  each  other, 
&c." 

"  We  have  come  then  clearly  to  this  point,  that  the  north-west  angle 
of  Nova  Scotia  is  to  be  found  by  running  a  line  due  north  from  the 
source  of  the  St.  Croix  River  to  the  highlands  to  a  point  or  a  place, 
where  that  line  shall  intersect  a  line  along  the  highlands,  which  divide 
the  rivers  as  before   mentioned,  and  run  to  the  north-westernmost  head 

of  Connecticut  River The  highlands 

had,  in  the  year  1763,  been  made  the  boundary  of  Quebec,  or  the  Low- 
er Canada  boundary,  but  where  the  boundaries  or  highlands  are,  is  yet 

resting  on  the  wing  of  imagination 

We  are  as  entire  strangers  to  the  highlauds,  and  the  sources  of  the 
rivers  on  either  side  of  them,  as  we  are  to  the  sources  of  the  Nile. 


■f1' 


f^ 


A 


116 


Subsequent  to  17S3. 


I 

Si 


Ri  • 


ii 


There  can  be  no  doubt  that  the  nurth-west  angle  of  Nova  Scotia  is  yet 
to  be  formed,  and  that  is  to  be  done  by  forming  the  north-east  angle  of 
the  State  of  Massachusetts.  To  do  this  it  has  become  necessary  to 
find  the  river  which  was  truly  meant  aud  intended  by  the  commission- 
ers who  describe  the  bounds,  to  find  the  source  uf  that  river,  and  to  draw 
a  line  due  north  from  thence.  But  even  this  cannot  decide  where  the 
north-west  angle  is,  because  the  Board  has  no  authority  to  fix  the  line, 
which  is  to  be  intersected  in  order  to  form  the  angle,  or  tbe  point  of 
inclination  of  the  two.  The  question  resulting  from  the  Treaty  in  re- 
gard to  the  line  upon  the  highlands  is  reserved  to  a  future  period.  This 
Board  has  no  concern  in  it  as  to  its  principles  or  consequences,  and 
the  point  of  locality  of  the  north-west  angle  is  to  be  the  investigation  of 
the  next  century." 

Some  further  explanation  of  the  conception  entertained  by  Mr.  Sulli- 
van of  the  character  of  the  highlands,  will  be  given  in  the  sequel.  It  is 
sufHcieut  here  to  refer  to  the  map  annexed  to  his  History  of  Maine, 
published  in  1795,  in  order  to  show,  that  he  had  no  doubt  respecting  the 
position  of  the  dividing  highlands,  nor  as  to  the  fact  that  in  order  to 
reach  them  the  due  north  line  must  cross  the  River  St.  John.  That 
this  was  also  at  that  time  the  opinion  of  Mr.  Chipman,  the  British 
Agent  before  the  same  commission,  and  also  what  his  views  were  re- 
specting the  north-west  angle  of  Nova  Scotia  and  concerning  the  coin* 
cidence  of  the  former  boundaries,  with  those  established  by  the  Treaty 
of  1783,  will  appear  from  the  following  extracts  of  his  argument  before 
the  said  Commission  in  the  year  1798  : 

"  The  limits  of  the  Province  of  Nova  Scotia,  at  the  time  of  the 
Treaty  of  Peace,  were  the  same  that  were  established  when  the  province 
was  anciently  and  originally  erected  and  named,  in  every  respect,  ex. 
cepting  the  said  Island  of  St.  John  and  the  northern  boundary  line, 
which,  by  the  erection  of  the  Province  of  Quebec,  afler  the  peace  of 
1763,  was  altered  from  the  southern  bank  of  the  River  St.  Lawrence  to 
the  highlands  described  in  the  article  of  the  Treaty  of  peace." 

"  If  it  can  be  shown  that  the  river  Scoodiac,  so  called  by  the  Indians, 
is  this  River  St.  (  loix,  and  that  a  line  along  the  middle  of  it  to  its 
source,  together  with  a  line  due  north  from  its  source,  formed  a  part 
of  the  western  boundaries  of  the  Province  of  Nova  Scotia,  and  that 
the  highlands  formed  the  northern  boundary  lines  of  this  Province,  at  the 
time  the  Treaty  of  peace  was  made,  so  as  to  form  the  north-west  angle 
of  Nova  Scotia,  by  these  western  and  northern  boundaries,  the  intention 
of  the  Treaty  of  Peace  is  at  once  ascertained  in  the  great  point  in  con- 
troversy. 

"  The  Province  of  Quebec  was  created  and  established  by  the  Royal 
Proclamation  of  the  7lh  October,  in  that  year,  and  bounded  on  the  south 


Opinhn$  Entertained. 


117 


ndians, 
to  its 
a  part 
nd  that 
,  at  the 
angle 
tention 
in  con- 


by  the  Highlands  which  divide  the  rivers  that  empty  themselves  into  the 
River  St.  Lawrence  from  those  which  fall  into  the  Sea  or  Atlaatic  Ocean, 
thereby  altering  the  north  boundary  of  the  Province  of  Nova  Scotia 
from  the  southern  shore  of  the  River  St.  Lawrence  to  those  Highlands.** 

"  It  is  sufficient  here  to  observe,  that  at  the  time  the  Treaty  of  Peace 
was  made  in  1783,  the  Provinces  of  Quebec  and  Nova  Scotia  belonged 
to  and  were  in  the  possession  of  the  Crown  of  Great  Britain  ;  and  that 
His  Britauuic  Majesty,  at  that  time,  had  an  undoubted  right  to  cede 
to  the  United  St  ites  of  America  such  part  of  these  Territories  as  he 
might  think  fit;  and  that  in  making  the  cession  of  the  territory  com- 
prised within  the  boundaries  of  the  United  States,  as  described  ia  the  se. 
cond  article  of  the  treaty  of  peace,  his  Majesty  must  be  supposed  to  have 
used  the  terms  describing  these  boundaries  in  the  sense  in  which  they 
had  been  uniformly  uuderstood  in  the  British  nation,  and  recognised 
in  public  documents  and  acts  of  government.  In  this  sense,  and  in 
no  other,  could  they  have  been  then  understood,  or  can  they  now  bo 
claimed  or  insisted  upon  by  the  United  States.  In  this  sense,  and  ia 
no  other,  is  his  Majesty  bound  to  give  the  possession." 

"  But  to  apply  these  facts  to  the  point  more  immediately  under  conside- 
ration— whether  a  line  due  north  from  the  source  of  the  western  or  main 
branch  of  the  River  Scoodiae  or  St.  Cro'x,  will  leave  to  each  of  the  par- 
ties to  the  treaty  the  source  of  those  rivers  that  empty  themselves  or 
whose  mouths  are  within  its  territories  upon  the  seacoast  respectively. 

"  The  effect,  so  far  as  regards  the  United  States,  is  completely  secured 
by  the  treaty  in  all  events  ;  aud  thence  we  have  further  reason  to  suppose 
it  was  intended  to  be  reciprocal  in  this  respect,  if  a  just  interpretation 
will  warrant  it.  A  line  due  north  from  a  source  of  the  western  or  main 
branch  of  the  Scoodiae  or  St.  Croix,  will  fully  secure  this  effect  to  the 
United  States  in  every  instance,  and  also  to  Great  Britain  in  all  instan- 
ces except  in  that  of  the  River  St.  John,  wherein  it  becomes  impossible, 
by  reason  that  the  source  of  this  river  is  to  the  westward,  not  only  of  the 
western  boundary  line  of  Nova  Scotia,  but  of  the  sources  of  the  Penob- 
scot, and  even  of  the  Kennebec,  so  that  this  north  line  must  of  necessity 
cross  the  River  St.  John  ;  but  it  will  cross  it  in  a  part  of  it  almost  at  the 
foot  of  the  Highlands,  and  when  it  ceases  to  be  navigable.  But  if  a 
north  line  is  traced  from  the  source  of  the  Cheputnatecook,  it  will  not 
only  cross  the  River  St.  John  within  about  fifty  miles  from  Fredricton, 
the  Metropolis  of  New  Brunswick,  but  will  cut  off  the  sources  of  the 
rivers  which  fall  into  the  Bay  of  Chaleurs." 

"  In  most,  if  not  all,  the  maps  of  the  interior  country,  published  be- 
fore the  year  1783,  although  the  courses  of  the  River  St.  Croix  are  very 
inaccurately  laid  down,  still  it  is  very  uniformly  made  to  terminate  in  a 
lake  near  the  eastern  branch  of  the  River  Penobscot ;  and  a  line  drawn 


;.t 


118 


Suhffment  to  1783. 


11  ii: 


ir- 


north  from  that  termination  upon  those  maps  will  not  intersect  any  of 
the  rivers  which  empty  themselves  into  the  sea,  to  the  eastward  of  the 
mouth  of  the  River  St.  Croix,  except  the  River  St.  John.^* 

"As  then,  at  the  treaty  of  peace  in  17S3,  the  northern  limit  of  the 
Province  of  Nova  Scotia  was  **  a  line  along  the  Highlands  which  di- 
vide the  rivers  that  empty  themselves  into  the  River  St.  Lawrence  from 
those  which  fall  into  the  sea,"  it  unquestionably  follows  that  the  north- 
west angle  of  Nova  Scotia  at  the  time  of  the  treaty  of  peace  in  1783  wos 
that  angle  which  was  formed  by  a  line  drawn  due  north  from  the  source 
of  the  River  St.  Croix  to  those  Highlands.  If  we  now  compare  this  an- 
gle with  the  north-west  angle  of  Novn  Scotia  described  in  the  treaty  of 
peace,  viz  :  that  angle  which  is  fornud  by  a  line  drawn  due  north  from 
the  source  of  St.  Croix  River  to  the  same  Highlands,  can  it  be  said, 
with  any  degree  of  propriety,  that  "  the  limits  and  boundaries  of  the 
Province  of  Nova  Scotia  were  unknown  ot  the  time  of  the  treaty  of 
peace  in  1783,  and  that  it  therefore  became  necessary  to  give  it  a  western 
boundary  by  the  treaty  itself,  in  these  words,  to  wit :  that  angle  which  is 
formed  by  a  line  due  north  from  the  source  of  the  River  St.  Croix  to  the 
Highlands  1 

"  Can  it  be  believed,  or  for  a  moment  imagined,  that,  in  the  course  of 
human  events,  so  exact  a  coincidence  could  have  happened  between  the 
actual,  real  boundaries  of  the  Province  of  Nova  Scotia,  and  the  bounda- 
ries of  it  described  in  this  treaty,  if  the  latter  had  not  been  dictated  and 
regulated  by  the  former  1 

"  Can  any  man  hesitate  to  say,  he  is  convinced  that  the  Commission- 
ers at  Paris,  in  1783,  in  forming  the  2d  article  of  the  Treaty  of  Peace, 
in  which  they  have  so  exactly  described  this  Northwest  Angle,  had  re- 
ference  and  were  f^overned  by  the  boundaries  of  Nova  Scotia,  as  de- 
scribed in  the  grant  to  Sir  William  Alexander,  and  the  subsequent  alter- 
ation in  the  Northern  Boundary  by  the  erection  of  the  Province  of 
Quebec  ?" 

"The  argument  of  the  Agent  of  the  United  States  would  certainly 
apply  with  much  greater  force  in  proving  the  Penobscot  to  be  the  River 
agreed  to  ;  as  this  river,  besides  being  once  known  indiscriminately  with 
the  other  rivers  by  the  namr  of  St.  Croix,  has  been  the  reputed  boundary 
of  Nova  Scotia,  and  was  contented  for  as  such  by  the  British  Commissa- 
ries at  Paris,  in  the  year  1750,  in  their  memorials  concerning  the  limits 
of  Acadia  or  Nova  Scotia." 

A  further  proof  of  the  understanding  had  at  that  time  of  the  ne- 
cessity that  the  St.  John  must  be  crossed  by  the  due  north  line  in  order 
to  reach  the  highlands,  is  found  in  the  following  proceedings  under  the 
same  commission. 

Its  object  was  to  decide  which  was  the  River  St.  Croix  contemplated 


Opiniont  EnUvtained, 


119 


ny  of 
of  the 

of  the 
ch  di- 
e  from 
north- 
63  was 
source 
ihis  an- 
•enty  of 
th  from 
>e  said, 
J  of  the 
reaty  of 
western 
which  is 
ix  to  the 

;ourse  of 

ween  the 

,  bounda- 

ated  and 

mission- 
'  Peace, 
had  re- 
,  as  de- 
nt alter- 

vince  of 

certainly 
he  River 
ly  with 
)oundary 
[)mmissa- 
[le  limits 

the  ne- 

in  order 

Uder  the 


lem 


plated 


by  the  treaty ;  and,  after  the  Scoodiac  had  been  decided  to  be  the  river, 
which  Was  its  true  source ;  the  source  generally,  without  designating 
which,  being  the  expression  used  in  the  treaty.  And  three  points  were 
contended  for  ;  first,  the  source  of  its  western  branch  which  was  the 
most  western  point  that  could  be  selected  ;  secondly,  the  spot  where  the 
same  branch  issues  from  the  lowest  of  the  lakes  now  called  Scoodiao 
Lakes,  which  was  the  most  eastern  point ;  thirdly,  the  source  of  the 
northern  branch  or  Cheputnatecook,  which  lies  east  of  the  source  of  the 
western  branch,  but  west  of  the  outlet  of  the  lakes. 

The  British  agent  strongly  contended  for  the  first  or  most  western 
point;  and  his  arguments  have  just  now  been  quoted. 

It  was  afterwards  ascertained,  that  the  Commissioners  intended  to 
declare  as  the  true  source  of  the  Scoodiac,  the  outlet  of  the  lakes,  which 
is  still  further  east  than  the  source  of  the  Cheputnatecook,  but  the 
American  Agent  proposed,  in  order  to  secure  a  small  tract  of  valuable 
land  between  the  two  branches,  to  agree  that  the  last  mentioned  source 
should  be  fixed  as  the  true  source  of  the  river.  As,  for  the  reasons  al- 
ready alleged,  the  British  Agent  preferred  at  all  events  the  most  western 
point  that  could  be  obtained,  he  acquiesced  in  this  proposal,  provided  it 
should  be  approved  by  Sir  Robert  Liston,  then  his  Britannic  Majesty's 
Minister  to  the  United  States.  And  this  eminent  person  agreed  to  it 
for  the  very  same  reason.  In  his  letter  of  23d  October,  1798,  to  the 
Agent,  he  says  : 

<'  It  appears  to  me  evident  that  the  adoption  uf  the  River  Cheputnate- 
cook, as  a  part  of  the  boundary  between  His  Majesty's  American  do- 
minions and  those  of  the  United  States,  in  preference  to  a  line  drawn 
from  the  easternmost  point  of  the  Schoodiac  Lakes,  would  be  attended 
with  considerable  advantage.  It  would  give  an  addition  of  territory  to 
the  Province  of  New  Brunswick,  together  with  a  greater  extent  of  navi- 
gation on  the  St.  John's  River,"  &c. 

Had  it  not  been  understood  that  the  due  north  line  must  necessarily 
have  crossed  the  River  St.  John,  the  whole  of  that  River,  and  of  itii 
navigation,  would  have  belonged  to  Great  Britain,  whatever  was  the 
point  from  which  that  north  line  should  be  drawn.  It  was  only  with  the 
understanding  that  that  lino  must,  at  all  events,  cross  that  river,  that  the 
extent  of  navigation  secured  to  New  Brunswick  could  be  greater  or 
less,  as  the  north  line  crossed  the  river  more  or  less  westerly.  Mr. 
Liston,  therefore,  construing  the  treaty  as  every  other  person  did  at  the 
time,  knew  that  the  highlands,  designated  by  that  instrument,  must  be 
north  of  the  River  St.  John's  and  that  the  north  line,  in  order  to  meet 
them,  must  cross  that  river. 

In  the  course  of  the  proceedings  before  the  commission  of  1798,  the 
agent  on  the  part  of  the  United  States  stated,  that  the  commissioners, 


'■1 


f 

Mi 


■  f 


,.i.- 


ISO 


Subsequent  to  1783. 


Ri    t 


h*!' 


who  concluded  the  provisional  treaty  of  pence  in  1782,  marked  the  di* 
viding  line  between  the  two  nations  upon  Mitchell's  Map  ;  and  he  pro- 
duced a  map  of  Mitchell,  as  the  identical  copy  which  the  commissioners 
had  before  them  at  Paris,  which  had  been  found  deposited  in  the  office 
of  fiecretury  of  State  for  the  United  States,  and  had  the  eastern  bounda- 
ry of  the  United  States  traced  on  it  with  a  pen  or  pencil.  In  his  letter 
of  25th  October,  1784,  Mr.  Adams  states  that  it  was  Mitchell's  Map 
upon  which  was  marked  out  the  whole  of  the  boundary  lines  of  the 
United  States.  It  does  not  appear  that  the  identity  of  the  map  was  ques- 
tioned when  thus  brought  before  the  commission.  The  same  map  was 
still  in  the  office  of  the  Secretary  of  State,  as  late  as  the  year  1828;  and 
the  boundary  lines  traced  upon  it,  first  with  a  pencil  and  afterwards  with 
a  pen,  were  those  claimed  by  the  United  States.  But  as  it  had  not  been 
certified  by  the  commissioners  to  be  the  identic  map  used  in  the  course 
of  the  Negotiations,  it  was  not  laid  before  the  King  of  the  Netherlands 
on  the  part  of  the  United  States,  as  evidence  of  their  claim. 

Several  years  subsequent  to  the  proceedings  of  the  commission  of 
1798,  Mr.  Sullivan  was  requested  by  the  Department  of  State  to  commu- 
nicate his  ideas  on  the  yet  unsettled  question  of  the  islands  in  the  Bay 
of  Fassamaquoddy,  and  to  explain  the  difficulty  which  he  had  suggested 
respecting  the  Highlands  contemplated  by  the  treaty.  His  answer  of 
20th  May,  1802,  on  the  last  subject  was  as  follows,  viz  :  (6) 

"  By  the  treaty  of  peace  it  is  provided  that  the  boundaries  shall  be, 
"  from  the  north-west  angle  of  Nova  Scotia,  viz  :  that  angle  which  is 
formed  by  a  line  drawn  due  north,  from  the  source  of  the  St.  Croix  to 
the  Highlands;  along  the  Highlands  which  divide  those  rivers  that 
empty  themselves  into  the  Rivejr  St.  Lawrence  from  those  which  fall  into 
the  Atlantic  Ocean,  to  the  north-westernmost  head  of  Connecticut 
River." 

"  You  will  see  by  the  maps  of  that  part  of  the  country,  that  the  line 
which  runs  north  from  the  source  of  the  St.  Croix  crosses  the  River  St. 
John  a  great  way  south  of  any  place  which  could  he  supposed  to  be  the 
Highlands ;  but  where  that  line  will  come  to  thf  north-west  angle  of 
Nova  Scotia,  and  find  its  termination,  is  not  eaty  to  discover." 

"  The  boundary  between  Nova  Scotia  and  Canada,  was  described  by 
the  King's  Proclamation  in  the  same  mode  of  expression  as  that  used 
in  the  treaty  of  peace.  Commissioners  who  were  appointed  to  settle 
that  line  have  traversed  the  country  in  vain  to  find  the  Highlands  desig- 
nated as  a  boundary.     I  have  seen  one  of  them,  who  agrees  with  the  ac* 


(6)  See  "  Confidential  Documents  laid  before  the  Senate  of  the  United  States, 
forming  the  tenth  volume  of  State  papers  published  by  Thomas  B.  Wait,  Boston, 
1819."    This  work  has  not  been  alluded  to  in  the  British  Statements. 


Opiniona  Entertained, 


121 


le  pro- 
lioners 
B  office 
lounda- 
i>  letter 
'8  Map 
of  the 
IS  quet- 
lap  was 
28 ;  and 
rds  with 
not  been 
Ft  course 
herlands 

ssion  of 
commu> 
the  Bay 
luggested 
nswer  of 

shall  be, 
which  is 
Croix  to 
Ivers  that 
1  fall  into 
nnecticut 

the  line 
River  St. 
to  be  the 

angle  of 

cribed  by 
that  used 
to  settle 
ids  desig- 
ith  the  ac« 


ited  States, 
lit,  Boston, 


count  I  have  had  from  the  natives,  and  others,  that  there  are  no  moun- 
tains or  hif^hlaniU  on  the  southerly  side  of  tho  St.  Lawrence  and  north- 
eastward of  the  River  Chandiere.  That  from  the  mouth  of  the  St.  Law- 
rence to  that  river  there  is  a  vast  extent  of  high  flat  country,  thousands 
of  feot  above  the  level  of  the  sea,  in  perpendicular  height,  being  a  mo* 
raas  of  millions  of  acres,  from  whence  issue  numerous  streams  and  riv- 
ers, and  from  which  a  great  number  of  lakes  are  filled  by  drains.  That 
the  rivers  originating  in  this  elevated  swamp,  pass  each  other  wide 
asunder  many  miles  in  opposite  courses,  some  to  the  St.  Lawrence,  and 
some  to  the  Atlantic  Sea." 

"  Should  this  description  be  founded  in  fact,  nothing  can  be  efTectire- 
ly  done,  as  to  a  Canada  line,  without  a  commission  to  ascertain  and 
settle  the  place  of  the  north-west  angle  of  Nova  Scotia,  wherever  they 
may  be  agreed  to  be.  If  there  is  no  mountain,  or  national  monument, 
an  artificial  one  may  be  raised.  From  thence  the  line  westward,  to 
Connecticut  River,  may  be  established  by  artificial  monuments,  erected 
at  certain  distances  from  each  other  ;  the  points  of  compass  from  the 
one  to  the  other  may  bo  taken  :  and  the  ascertaining  the  degree  of  lati- 
tude, which  each  one  is  placed  on,  from  actual  observation,  may  be  very 
useful.  Though  there  is  no  such  chain  of  mountains,  as  the  plans  or 
maps  of  the  country  represent  under  the  appellation  of  the  highlands,  yet 
there  are  eminences  from  whence  an  horizon  may  be  made  to  fix  the 
latitude,  from  common  quadrant  observations." 

"  In  the  description  of  the  morass,  which  is  said  to  crmvn  the  heights 
between  the  United  States  and  Lower  Canada,  it  ought  lo  have  been 
noticed,  that  though  those  swamps  are  vastly  extensive,  yet  in  the  ac- 
clivity from  the  Atlantic  to  their  highest  elevation,  as  well  as  in  their 
declivity  to  the  St.  Lawrence,  great  tracts  of  valuable  country  are  Inter- 
spersed." 

In  the  instructions  given  by  the  department  of  state,  (Mr.  Madison) 
to  Mr.  King  the  Minister  of  the  United  States  at  London,  concerning 
the  division  of  the  islands  in  the  Bay  of  Passamaquoddy,  and  the  north- 
eastern and  the  north-western  boundaries  of  the  United  States,  dated 
June  8th,  1802,  the  following  paragraph  relates  to  the  subject  in  ques- 
tion, (c) 

"In  pursuance  of  the  next  object,  viz:  the  establishment  of  boun. 
daries  between  the  United  States  and  New  Brunswick  on  one  side,  and 
of  Canada  on  another,  it  will  be  proper  to  provide  for  the  immediate 
extension  of  the  Hue  which  is  to  run  from  the  source  of  the  St.  C'roix, 
and  which  is  represented  as  necessary  to  guard  against  interfering  or 
encroaching  grants  under  American  and  British  authorities.     As  the 

(c)  Confidential  documents  as  above. 
11 


1 

J 

1« 


122 


Subsequent  to  1783. 


r 

iiV-,.  ^J| 


course  of  this  line  is  to  be  due  north,  and  is  to  proceed  from  a  point 
fixed  by  a  survey  already  made,  the  runuinp  if  it  will  be  sufBciently 
provided  for  by  an  appointment  of  a  commis.  ..ner  by  each  of  the  two 
governments,  and  an  appointn.ont  by  the  two  commissioners  of  a  sur- 
veyor. In  fixing  the  point  at  which  the  line  is  to  terminate,  and  which 
is  referred  to  as  the  north-west  angle  of  Nova  Scotia,  the  difficultv^ 
arises  from  a  reference  of  the  treaty  of  17S3,  <•  to  the  highlands,"  which 
it  is  now  found  have  no  dehnite  existence.  To  cure  this  difficulty,  no 
better  expedient  occur.t  than  to  provide  for  the  appointment  of  a  third 
commissioner,  as  in  Article  Y.  of  the  Treaty  of  1794,  and  to  authorize 
the  three  to  determine  on  a  point  mo'  .  proper  to  be  substituted  for  the 
description  in  Article  II.  of  the  Treaty  of  17S3,  having  due  regard  to 
the  general  idea  that  the  line  ought  to  te%  minate  on  the  elecated  ground 
dividing  the  rivers  falling  into  the  Atlantic  from  those  emptying  them- 
■elves  into  the  St.  Lawrenr^  The  commissioners  may  also  be  autho. 
rized  to  substitute  ftr  the  description  of  ''..e  boundary  between  the  point 
so  fixed  and  the  north-westernmost  head  of  Connecticut  River,  namely^ 
a  line  drawn  <<  along  the  said  highlands,"  such  a  reference  to  interme- 
diate sources  of  rivers  or  other  ascertained,  or  ascertainable  points  to  be 
connected  by  straight  lines,  as  will  admit  of  easy  aud  accurate  execuilon 
hereafler,  and  as  wiil  best  comport  with  the  apparent  intention  of  the 
Treaty  of  1783." 

It  appears  by  Mr.  Sullivan's  Letter,  that  he  had  no  doubt  that  the  due 
north  line  must  cross  the  St.  John  far  south  of  the  highlands  contem- 
plated by  the  treaty.  He  thought  that  the  ground,  in  which  the  rivers 
originated,  flowing  in  opposite  courses  to  the  St.  Lawrence,  and  to  the 
Atlantic,  was  a  morass  of  millions  of  acres,  a  vast  extent  of  high  flat 
country  thousands  of  feet  above  the  level  of  the  sea,  through  which  he 
apprehended  some  difficulties  in  tracing  the  boundary.  No  such  diffi- 
culty occurs,  but  his  principal  er:or  consisted  in  confounding  th^  term 
«'i.5ghlands,"  the  technical  meaning  of  which  hais  been  fully  explained, 
with  "  chain  of  mountains." 

Mr.  Madison,  whilst  he  repents  after  Mr.  Sullivan,  that  the  highlands 
have  no  definite  existence,  by  which  he  means  that  the  higlilands  are 
not  mountains,  saw  ve";;  clearly,  that  the  due  north  line  ousht  to  termi- 
nate on  the  elevated  ground  dividing  the  rivers  falling  into  the  Atlantic 
from  those  emptying  themselves  into  thf  St.  Lawrence.  And  in  order 
to  ob-iale  the  suggested  difficulty  in  suiveying  the  boundary  »\long  tho 
highlands,  he  proposes  a  referenci*  to  intermediate  sources  of  rivers  (to 
be  named  in  the  Convention)  to  be  connected  afterwards  by  an  actual 
survey.  That  reference  to  unknown  and  nameless  sources  wt  not 
practicable  :  and  IVlr.  King  concluded  on  the  12th  May,  1803,  a  couven- 


Opinions  Enlertained. 


128 


ilands 

Is  aie 

Itermi- 

Itlantic 

order 

Jg    t'uO 

jrs  (to 
I  actual 
not 
>uven- 


tion  with  Lord  Hawkesbury,  which  provides  for  an  actual  survey  of  the 
boundary  ;  as  appears  by  the  following  articles  of  the  same : 

«  Art.  II.  Whereas,  it  has  become  expedient  ihat  the  north-west  angle 
of  Nova  Scotia,  mentioned  and  desc-ibc  J  in  the  treaty  of  peace  between 
his  Majesty  and  the  United  States,  saould  be  iceitaired  and  determin- 
ed, and  that  the  line  betv  een  the  source  of  the  River  St.  Croix.,  and 
the  said  north-west  angle  of  Nova  Scotia,  should  be  run  and  marked  ac- 
cording to  the  provisions  of  the  said  treaty  of  peace  ;  it  is  agreed,  that 
for  this  purpose,  commissioners  shall  be  appointed  in  the  lollowing 
manner,  viz :  one  commissioner  shall  be  named  by  his  Majesty,  and 
one  by  the  President  of  the  United  States,  by  and  with  the  advice  and  con- 
sent  of  the  Senate  thereof,  and  the  said  two  commissioners  shall  agree  in 
the  choice  of  a  third ;  or  if  they  cannot  agree,  they  shall  *'.ach  propose  one 
person,  and  of  the  two  names  so  proposed,  one  shall  be  taken  by  lot  in 
the  presence  of  the  two  original  commissioners  ;  and  the  three  com- 
missioners so  appointed  shall  be  sworn,  impartially  to  ascertain  and  de- 
termine the  said  north-west  angle  of  Nova  Scotia,  pursuant  to  the  pro- 
visions of  the  said  treaty  of  peace,  and  likewise  to  cause  the  said  boun- 
dary line  between  the  source  of  the  River  St.  Croix,  as  the  same  has 
been  determined  by  the  commissioners  appointed  for  that  purpose,  and 
the  north-west  angle  of  Nova  Scotia  to  be  run  and  marked  according  to 
the  provisions  of  the  treaty  aforesaid." 

"  Art.  III.  It  is  further  agreed,  that  the  said  commissioners,  after 
they  shr'  have  executed  the  duties  assigned  to  them  in  the  preceding 
article,  shall  be,  and  they  hereby  are  authorised,  upon  their  oaths,  im- 
partially to  ascertain  and  determine  the  north-western  most  head  of 
Connecticut  River,  according  to  the  provisions  of  the  aforesaid  treaty 
of  oeace,  and  likevise  to  cau?e  the  boundary  line,  described  in  the  said 
treaty  of  peace,  between  the  north-west  angle  of  Nova  Scotia  and  the 
said  north-westernmost  head  of  Connecticut  River,  to  be  run  and  mark- 
ed pursuant  to  the  provision,  of  the  said  treaty." 

No  objection  was  made  to  those  provisions :  but  the  Senate  of  the 
United  ^States  refused  its  assent  to  the  ratification  of  the  Convention, 
unless  an  article  w&s  added  explanatory  of  that  which  provided  for  the 
ijattlenient  of  the  north-western  boundary  betwee:i  the  two  Powers. 
This  having  bee  a  refused  by  Great  Britain,  the  Convention  was  not 
carkied  into  effect.  Another  similar  and  unsuccessful  attempt  was  made 
in  1807  by  Mr.  Monroe  then  Minister  of  the  United  Slates  at  London. 
The  subject  was  at  last  disposed  of  on  the  same  principle  in  the  year 
IS  14  by  the  Treaty  of  Ghent.  But  the  propositions  discussed  during 
the  course  of  the  negotiation  deserve  considerfition. 

The  British  Plenipotentiaries  at  lhu>  time,  'vhen  explaining  what  they 
meant  by  a  revision  of  the  frontiers  generally,  and  after  say' Jg  that  Great 


m. 


m 


«n 


"i'l 


■IM 

1  n 

■  ■  i  -  fl 

* 

■ 

1     I 

i 

124 


Subsequent  to  1783. 


Britain  did  not  desire  it  with  any  view  to  the  acquisition  of  territory,  at 
such,  enumerated  amongst  the  subjects  of  discussion,  not  the  ascertain* 
ing  in  the  conformity  with  the  treaty  of  1783,  but  "such  a  VARIA- 
TION of  the  line  ot'  frontier,  as  might  secure  a  direct  communication 
between  Quebec  and  Halifax." 

This  was  not  a  casual  expression,  but  a  deliberate  and  solemn  expo- 
sition of  the  terms  on  which  Great  Britain  proposed  to  make  peace. 
There  could  not  be  a  mor^  express  acknowledgment  than  the  proposi- 
tion made  under  such  circumstances,  and  in  such  terms,  that  the  desired 
communication  could  not  be  obtained  without  a  variation  of  the  line  es- 
tablished by  the  treaty  of  1783. 

It  wpc  only  after  the  explicit  declaration  of  the  American  Plenipoten- 
tiaries, that  they  had  no  authority  to  cede  any  part  of  the  territory  of  the 
United  States,  and  would  subscribe  to  no  stipulation  to  that  eflTect ;  and 
after  having  lost  all  hope  of  obtaining  a  variation  of  the  line,  that  the 
British  Plenipotentiaries  changed  their  ground.  It  was  then,  for  the 
first  time,  gratuitously  asserted,  that  the  American  Plenipotentiaries 
were  aware  that  the  boundary  asserted  at  present  by  the  American  GoV' 
ernmeiitf  by  which  the  direct  communication  between  Halifax  and  Que- 
bec became  interrupted,  was  not  in  contemplation  of  the  British  Pleni- 
potentiaries who  concluded  the  treaty  of  1783. 

A\en.  this  assertion  was  accompanied  by  a  declaration,  that  the  British 
had  not  anticipated  the  statement  made  by  the  American  Plenipotentia- 
ries,— viz  :  that  they  had  nr  authority  "to  cede  any  part,  however  in- 
significant, of  the  territories  of  the  United  States,  although  the  proposal 
left  it  open  to  them  to  demand  an  equivalent  for  such  cession,  either  in 
frontier  or  otherwise." 

The  American  Plenipotentiaries  answered,  that  they  had  never  un- 
derstood that  "  the  British  Plenipotentiaries  who  signed  the  treaty,  had 
contemplated  a  boundary  different  from  that  fixed  by  the  treaty,  and  which 
required  nothing  more  in  order  to  be  definitively  ascertained  than  to  be 
surveyed  in  conformity  with  its  provisions ;"  and  t"  ■\i  they  had  "  no  au- 
thority to  cede  any  part  of  the  State  of  Massachusetts,  even  for  what  the 
British  might  consider  a  fair  equivalent."  And  'hey  subsequently  declared 
<«that  they  did  not  decline  discussing  any  matter  of  uncertainty  or  dis. 
pute  respecting  the  boundaries  in  that  or  in  any  other  quarter,"  and 
that  they  were  "  prepared  to  propose  the  appointment  of  commissioners 
by  the  two  governments  to  extend  the  line  to  the  Highlands,  conforma- 
bly to  the  treaty  of  1783."  But  they  added  that  "  the  proposal,  however, 
of  the  British  Plenipotentiaries  was  not  to  ascertain,  but  to  vary,  those 
lines,  in  such  manner  as  to  secure  a  direct  communication  between 
Quebec  and  Halifax  ;  an  alteration  which  could  not  be  effected,  without 
B  cession  by  the  United  States  to  Great  Britain  of  all  that  portion  oftho 


Opinions  Entertained. 


125 


State  of  Massachusetts  intervening  between  the  Province  of  New  Bruns- 
wick and  Quebec,  although  unquestionably  included  within  the  boundary 
lines  fixed  by  that  treaty. 

To  this  last  observation  the  British  Plenipotentiaries  replied,  that  the 
British  Government  never  required  that  all  that  portion  of  the  State  of 
Massachusetts  intervening  between  the  Province  of  New  Brunswic! .  and 
Quebec,  should  be  ceded  to  Great  Britain,  but  only  that  small  portion  of 
unsettled  country  which  interrupts  the  communication  between  Halifax 
and  Quebec,  there  being  much  doubt  whether  it  does  not  already  belong 
to  Great  Britain. 

The  proposal  of  the  American  Plenipotentiaries  to  appoint  commis- 
sioners was  acceded  to,  and  extended  to  the  '^. /hole  line  of  frontier,  from 
the  source  of  the  River  St.  Croix,  to  the  Lake  of  the  Woods.  And  the 
contingency  of  a  disagreement  between  the  two  commissioners  was  pro- 
vided for.  No  power  to  vary  the  line  was  given  in  either  case  ;  it  be- 
in^"  expressly  provided  that  the  boundary  should  be  ascertained  and  sur- 

;  '^d  in  conformity  with  the  provisions  of  the  treaty  of  1783. 

:^.js  it  appears,  that  the  American  Plenipotentiaries  denied  the  in- 
tentions ascribed  to  the  British  Ministers  who  had  signed  the  treaty  ; 
that  they  uniformly  rejected  any  proposal  to  vary  the  line,  and  to  cede 
any  part  of  the  territory  of  the  United  States,  or  of  the  Stale  of  Massa. 
chusetts  ;  and  that  they  agreed  to  the  reference,  only  on  the  general 
ground  of  leaving  to  an  amicable  mode  of  settlement  all  the  questions 
relative  to  the  whole  of  their  extensive  frontier,  which  had  not  yet  been 
actually  ascertained  and  surveyed. 

It  may  now  be  asked,  wnether  a  demand  made,  on  a  most  solemn  oc- 
casion, by  the  British  Governmeni  itself,  of  a  variation  of  the  boundary 
line  defined  by  the  treaty  of  1783,  at  the  same  time  that  another  demand 
was  also  made  of  one  half  of  the  great  lakes,  and  of  the  rights  of  sover- 
eignty ove;  tve  shores  secured  to  the  United  States  by  the  same  treaty  ; 
whether  su'  ^  *  x'ud,  under  such  circumstances,  was  not  a  moat  expli- 
cit ackno>^'iv;:^i!P  '.  of  the  previous  undoubted  right  of  the  United  States 
to  that  territory,  aii<?  does  not  decisively  refute  the  late  assertions  of  an 
exclusive  and  undisturbed  possession  by  Great  Britain,  and  of  a  con- 
structive claim  but  lately  advanced  by  America. 

An  allusion  has  been  made,  in  the  British  Statement,  to  a  letter  writ- 
ten by  one  of  th.i  American  Plenipotentiaries  to  his  Government,  the 
day  subsequent  to  the  signature  of  the  treaty.  Every  thing  contained 
in  a  letter  of  that  descriptior  is  wholly  irrelevant  to  the  question;  since 
a  miniii'^  when  writing  to,  Joes  not  act  as  the  organ  of  his  Gov- 
ernmeiii.  t  nnight  be  sufficient  to  observe,  that  it  has  been  fully  de- 
monstrated, by  the  very  document  to  which  he  appealed,  that  the  Ame- 
rican Plenipotentiary  was  altogether  mistaken  in  supposing-  that  the  con- 

11* 


-f 


|i 


126 


Subsequent  to  1783. 


i  "& 


I  ' 


tested  territory  was  not  within  the  boundaries  of  the  State  of  Massachu- 
setts ;  and  secondly,  that  if  the  boundary  lines  designated  by  the  previous 
public  acts  of  Great  Britain,  and  adopted  by  the  treaty  of  1783,  had 
enibraced  any  portion  of  territory  not  included  within  the  chartered  li- 
mits of  Massachusetts'  Bay,  such  portion  would  nevertheless  have  belong- 
ed to  the  United  States. 

But,  as  the  allusion  is  made  to  the  writer  of  this  essay,  he  will  ask  the 
permission,  though  a  matter  purely  personal  and  irrelevant  to  any  ques- 
tion  at  issue,  to  state  the  cause  of  his  mistake. 

In  the  year  1810,  whilst  Secretary  of  the  Treasury,  he  had  in  charge 
a  compilation 'of  the  laws  and  other  public  documents  respecting  the  pub- 
lic lands.  To  this  he  prefixed  an  introduction  explanatory  of  the  title 
pf  the  United  States  to  the  public  lands,  as  derived  from  treaties  and 
from  the  cessions  of  the  individual  States  ;  and  a  noic  is  appended  to 
that  introduction  (Page  xiv,) .    t^    f<^Uowing  words,  viz  :  (d) 

«  The  title  of  the  State  of  Ma.  -  jetts  to  the  territory  north  of  tho 
old  province  of  Maine,  between  ISi  t  Hampshire  and  the  river  Kenne- 
bec, is  not  understood.  The  northern  boundary  of  that  province  is  by 
the  charter  of  1691  fixed  at  120  miles  from  the  sea,  and  no  subsequent 
document  has  been  seen,  extending  the  province  to  the  northern  boun- 
dary of  the  United  States.  Thence  it  would  seem  that  the  territory 
west  of  Kennebec  and  north  of  the  boundary  established  by  the  charter, 
vested  by  the  treaty  of  peace  in  the  United  States  and  not  in  the  State  of 
Massachusetts.  The  same  observation  applies  to  a  small  tract  in  the 
possession  of  New  Hampshire,  lying  north  of  the  45th  degree  of  north 
latitude ;  that  parallel  appearing  to  have  been  the  northern  boundary  of 
the  province  whilst  under  the  British  government." 

In  the  year  1814,  and  at  Ghent,  that  individual  had  not  before  him 
the  charter  of  Massachusetts,  but  recollected  that  there  was  a  certain  por- 
tion of  territory  not  included  within  the  limits  designated  by  that  char- 
ter, though  within  the  boundaries  established  by  the  treaty  of  1783.  He 
confounded  that  tract  which  lies  west  of  the  Kennebec  with  the  territory 
east  of  the  Penobscot,  ''.nd  alluded  also  erroneously  to  the  45th  parallel 
of  latitude  which  is  the  northern  boundary  of  New  Hampshire,  as  being 
that  of  Massachusetts. 

{d)  That  note  is  also  transcribed  in  Colvin's  edition  of  the  laws  and  otlier  public 
documents  of  the  United  States.    Vol.  I.  Page  454, 


S^K' 


JVeto  Suggestion . 


127 


No.  II. 

Notes  on  an  essay  in  the  Westminster  Review  for  June,  1840,  signed 

C.  B. 


C  '" 

'•"it 


public 


The  anonymous  author  of  this  essay  is  entitled  to  praise  for  his 
candour  and  liberal  spirit,  as  regards  the  general  relations  between  the 
two  countries.  But  neither  liberality,  knowledge,  or  talent  can  perform 
impossibilities.  The  writer  could  not  persuade  himself  to  abandon  the 
pretensiuiis  advanced  by  former  British  Agents  and  unfortunately  sus- 
tained by  his  Government.  He  repudiates  all  their  arguments  but  one, 
and  yet  cannot  help  contradicting  himself.  The  case  was  desperate, 
and  he  has  suggested  a  novel  but  most  extraordinary  remedy. 

He  commences  the  recapitulation  of  his  reasonings  in  the  following 
words,  viz  : 

"  The  boundary  lines  of  the  treaty  of  1783  were  not  new  lines,  but 
the  old  acknowledged  though  unascertained  lines  assigned  by  the  procla- 
mation of  1763,  the  act  of  1774,  and  the  various  commissions  of  the 
Governors  of  the  two  Provinces  of  Quebec  and  Nova  Scotia." 

"The  only  significant  difference  between  the  terms  in  which  the 
boundaries  are  described  in  the  preceding  documents,  and  those  which 
are  used  in  the  treaty,  is  that  of  the  substitution  of  '  Atlantic  Ocean ' 
for  '  Sea.'  As  the  term  '  Atlantic  Ocean '  is  always  in  the  treaty  and 
in  the  commissions  of  the  Governors  used  in  a  restricted  sense,  never 
as  comprehending  the  Bay  of  Fundy  and  Gulf  of  St.  Lawrence,  but 
frequently  in  contradistinction  to  them  ;  the  deliberate  substitution  of  it  for 
the  more  general  term  ♦  the  Sea,'  must  lead  to  the  inference  that  that 
change  of  this  single  term  was  meant  to  mark  that  the  water  courses 
divided  by  the  highlands  were  those  of  what  we  have  called  the  St.  Law- 
rence and  Atlantic  basins." 

Now,  if  that  significant  difference,  if  that  deliberate  substitution  of 
the  term  "Atlantic  Ocean"  for  that  of  "Sea"  has  caused  such  an 
alteration  as  to  exclude  the  St.  John  and  Ristigouche  basins  from  the 
«'ater  courses  divided  by  the  Highlands ;  it  is  very  clear  that  the  boun- 
dary lines  of  the  treaty  of  1783  were  not  the  old  acknowledged  lines 
assigned  by  the  former  Acts  of  the  British  Government.  And  if  the 
substitution  of  a  new  for  the  old  term  has  caused  no  L'uch  a!teration,  the 
term  "Atlantic  Ocean"  in  the  treaty  is  synonymous  with  the  term 
"  Sea"  used  in  the  Proclamation. 

If  no  alteration  was  made  by  the  change  of  the  term  and  the  bounda< 
ties  remain  the  same,  no  argument  can  be  deduced  from  that  change,  to 
prove  that  the  term  "Atlantic  Ocean  "  must,  in  the  clause  of  the  treaty 


■i. 


I 


I 


•M 


|[  ■■  ■ 


128 


JVeio  Suggestion. 


which  relates  to  the  division  of  rivers,  be  taken  in  a  restricted  sense 
other  than  is  expressed  in  the  clause  itself. 

If  such  important  alteration  was  made  by  the  change  of  the  term  and 
the  boundaries  are  no  longer  the  same,  the  author  of  the  essay  cannot 
appeal  to  the  proclamation  and  particularly  to  the  mention  made  in  it  of 
the  Bay  des  Chaleurs,  for  the  purpose  of  explaining  the  terms  of  the 
treaty. 

The  only  arguments  of  the  former  British  Agents  which  the  writer  of 
the  essay  seems  to  have  preserved,  are  those  adduced  in  order  to  prove 
that  the  term  "  Atlantic  Ocean,"  in  the  clause  of  the  treaty  which  relates 
to  the  division  of  rivers,  must  be  so  construed  as  to  exclude  the  St. 
John  and  the  Ristigouche  from  the  Atlantic  rivers  contemplated  by  the 
treaty.  It  is  not  necessary  to  state  again  here  at  large  the  arguments 
and  the  illustrations  adduced  in  the  preceding  pages  in  order  to  refute 
that  interpretation  of  the  clause  in  question.  One  only  of  the  illustra- 
tions and  one  of  the  arguments  will  be  repeated. 

Subsequent  to  the  Treaty  of  1783,  it  appeav3  that  the  words  «  Atlan- 
tic Ocean  "  were  substituted  for  the  word  "  Sea,"  in  the  commissions 
of  the  governors  of  the  Province  of  Quebec.  Oh  the  27th  of  April  of 
the  year  1786,  Sir  Guy  Carleton  was  appointed  Governor  of  New 
Brunswi  i.  The  Province  is  in  the  commission  declared  to  be  bound- 
ed, to  the  eastward  by  the  Bay  des  Chaleurs  and  the  Gulf  of  St.  Law- 
rence, to  the  south  by  the  Isthmus  and  by  the  Bay  of  Fundy,  on  the 
westward  by  the,  River  St.  Croix  to  its  source,  and  by  a  line  drawn  due 
north  from  thence  to  the  southern  boundary  of  the  Province  of  Quebec, 
and  to  the  northward  by  the  said  boundary  as  far  as  the  western  extremity 
of  the  Bay  des  Chaleurs.  In  that  commission  the  Atlantic  Ocean  is  not 
mentioned,  and  theGulf  of  St.  Lawrence,  the  Bay  des  Chaleurs  and  the 
Bay  of  Fundy  are  each  designated  by  their  specific  names.  But  the 
southern  boundary  of  the  Province  of  Quebec,  was  declared  to  be  the 
northern  boundary  of  the  Province  of  New  Brunswick.  In  a  commis- 
sion to  Sir  Guy  Carleton  as  Governor  of  the  Province  of  Quebec,  dated 
the  22d  of  April  of  the  same  year,  the  southern  boundary  of  the  Pro- 
vince is  defined  to  be  «  a  line  from  the  Bay  of  Chaleurs  along  the  high- 
lands which  divide  the  rivers  that  empty  themselves  into  the  River  St. 
Lawrence  from  those  which  fall  into  the  Atlantic  Ocean,  to  the  north- 
westernmost  head  of  Connecticut  River,"  &c.  Every  river  without  ex. 
ception,  which  has  its  source  in,  or  flows  through  New  Brunswick,  falls 
either  into  Bay  des  Chaleurs,  the  Gulf  of  St.  Lawrence,  or  the  Bay  of 
Fundy.  All  the  rivers  therefore  contemplated  in  the  description  of  the 
northern  boundary  of  New  Brunswick,  which  is  identic  with  the  corres- 
ponding portion  of  the  southern  boundary  of  the  Province  of  Quebec,  as 
falling  into  the  Atlantic  Ocean,  do  actually  fall  into  one  of  those  three 


JVejo  Suggestion. 


129 


iulets  specifically  designated  by  their  distinct  names  in  the  commission 
for  New  Brunswick.  The  term  "  Atlantic  Ocean  "  embraces,  and  em- 
braces nothing  else  but  those  three  inlets. 

The  object  of  the  treaty  was  to  define  the  boundaries  of  the  United 
States,  and  not  those  between  the  Provinces  of  Quebec  and  Nova  Scotia. 
It  was  foreign  to  the  purpose  of  the  treaty  to  describe  the  north-west 
angle  of  Nova  Scotia,  one  side  of  which  is  formed  by  the  last  men- 
tioned boundary.  The  reference  in  the  treaty  to  that  angle  is  necessari- 
ly to  an  angle  formeriy  prescribed  by  the  public  acts  of  Great  Britain, 
viz  :  the  Proclamation  and  the  Quebec  Act.  The  United  States  have 
thence  deduced  one  of  the  most  conclusive  proofs  of  the  identity  of  the 
boundary  defined  in  the  Treaty  with  that  prescribed  by  the  Proclamatioa 
of  1763  and  by  the  Actof  1774  without  any  change  or  alteration,  of  the 
consequent  synonymy  of  the  terms  Atlantic  Ocean  and  Sea,  and  of  the 
accessary  conclusion  that  the  St.  John,  and  the  Ristigouche  are  to  be 
taken  in  the  Treaty,  as  they  were  in  the  Proclamation,  as  rivers  falling 
into  the  Atlantic  Ocean. 

If  it  could  be  admitted  that  the  term  "  Atlantic  Ocean"  was  to  be  taken 
in  the  clause  which  relates  to  the  division  of  rivers,  in  the  restricted 
sense  ascribed  to  it  on  the  part  of  Great  Britain,  it  has  always  appeared 
to  the  United  States  that  the  necessary  inference  was  an  impossibility 
to  carry  the  Treaty  into  effect.  For  in  that  case,  it  was  utterly  imposi. 
sible  that  any  boundary  line  could  be  run  from  the  due  north  line  towards 
the  sources  of  the  Chandiere,  that  could  fulfil  the  absolute  condition  of 
dividing  certain  specified  rivers,  imposed  on  that  portion  of  the  boun- 
dary by  the  express  terms  of  the  Treaty.  And  from  that  necessary  con- 
sequence, combined  with  the  knowledge  which  the  negotiators  of  the 
Treaty  had  of  the  topography  of  the  country,  the  conclusion,  irresistible 
as  it  is  believed,  has  been  drawn,  of  the  absurdity  of  supposing  that  they 
could  have  ascribed  to  the  term  "  Atlantic  Ocean  "  the  restricted  sense 
above  mentioned. 

It  is  in  order  to  get  rid  of  that  apparently  insurmountable  difHculty, 
that  the  author  of  the  essay  has  resorted  to  the  singular  but  novel  expe- 
dient of  substituting  for  a  boundary  line,  a  district  of  country  containing 
more  than  seven  millions  of  acres,  and  embracing  what  he  properly  calls 
the  St.  John  and  Ristigouche  basins.  The  only  reason  given  in  sup- 
port of  that  interpretation  of  the  treaty  is  the  admitted  fact  that  with  the 
rest.-icted  sense  ascribed  to  the  term  Atlantic  Ocean,  it  is  impossible,  to 
draw  a  boundary  line,  that  will  fulfil  the  conditions  of  the  treaty.  For 
the  author  was  misinformed  when  he  adduces  as  another  reason,  that 
the  names  of  height  of  land  (or  highlands)  seem  to  have  been  often  ap- 
plied to  the  whole  territory  in  question,  and  that  it  would  have  beec  in 


ill 


130 


.Veil;  Suggestion. 


M 


accordance  with  the  language  in  which  it  was  commonly  spoken  of  for 
the  negotiators  to  designate  it  as  the  highlands. 

Having  assumed  the  principle  that  the  dividing  highlands  of  the  treaty 
must  be  the  whole  highland  country  (as  he  calls  it)  extending  over  the 
disputed  territory  ;  the  author  admits  that  the  treaty  is  not  sufficiently 
explicit  to  determine  the  position  or  course  of  the  boundary  line,  and  re- 
sorts to  the  description  of  the  boundary  in  the  proclamation  and  in  the 
Quebec  Act. 

It  has  already  been  obsi^rved,  that  it  is  only  by  withdrawing  his  objec< 
lion  to  the  American  line,  derived  from  the  substitution  of  the  words  At- 
lantic Ocean  for  the  word  l^len,  and  by  acknowledging  the  complete  iden- 
tity of  the  treaty  highlands,  with  those  of  the  proclamation,  that  the  author 
of  the  essay  can  have  a  right  to  appeal  to  the  proclamation  and  to  the 
Quebec  Act  for  the  purpose  of  explaining  the  treaty.  There  is  another 
apparent  difference  between  the  treaty  and  those  two  instruments.  In 
the  treaty  it  is  declared  that  the  boundary  shall  be  along  the  dividing 
highlands  and  not  that  the  boundary  shall  be,  as  in  the  proclamation 
and  in  the  Quebec  Act,  a  line  along  the  dividing  highlands.  Yet,  T  do 
not  believe  that  the  author,  when  alluding  to  that  circumstance,  intended 
to  rest  his  argument  on  that  nice  distinction,  on  the  omission  of  the 
word  line  in  the  description  in  the  treaty  of  that  part  of  the  boundary ; 
and  to  say,  that,  if  the  framers  of  the  treaty  had  called  that  part  of  the 
boundary  a  line,  he  could  not  have  assumed  that,  by  the  boundary  pre- 
scribed by  them  they  meant  a  large  tract  of  country  and  not  a  line. 

It  is  proper  here  to  observe,  that  the  boundary  along  the  highlands 
could  not  be  a  mathematical  line.  There  is  always  a  certain  distance 
between  the  sources  of  the  rivers  flowing  in  different  directions.  The 
ground,  or  highlands,  which  divide  those  sources  always  has  some  and  a 
varying  breadth,  which  leaves  some  latitude  respecting  the  actual  position 
of  the  line  ultimately  to  be  drawn  between  those  sources,  and  required 
therefore  that  the  line  should  be  ascertained  and  surveyed  by  the  com- 
mon act  of  the  parties.  The  same  observation  applies  to  the  case  when 
a  river  or  a  lake  is  made  the  boundary.  Although  the  line  is  then  partly 
determined  by  the  word  "  middle  ;"  even  what  is  meant  by  that  word, 
the  selection  of  the  dividing  channel  and  the  division  of  the  islands,  re- 
mains to  be  settled  by  the  common  act  of  the  parties.  The  provision 
in  the  Treaty  of  Ghent  applied  to  the  whole  boundary  from  the  source  of 
the  River  St.  Croix  to  the  north-westernmost  extremity  of  the  Lake  of 
the  Woods  ;  and  it  was  expressed  in  the  same  terms  in  reference  to 
every  part  of  the  whole  boundary.  The  object  has  been  effected  with 
respect  to  the  River  St.  Lawrence,  to  the  lakes,  and  to  the  water  commu- 
nications between  the  lakes,  though  the  division  of  many  valuable  islands 
must  have  been  attended  with  considerable  difHculty.    In  proposing  that 


kVeto  Sug(>;estion. 


131 


pre- 

ands 
stance 
The 
and  a 
sition 
uired 
com- 
when 
artly 
word, 
,re- 
ision 
ce  of 
ke  of 
e  to 
with 
mu- 
ands 
that 


trticle  in  the  treaty  of  Ghent  and  on  two  previous  occasions,  the  United 
States  contemplated  a  similar  operation,  and  not  having  the  slightest  con- 
ception of  the  pretensions  of  Great  Britain  subsequently  disclosed,  did 
not  apprehend  any  serious  difficulty  from  the  vague  suggestions  of  some 
doubtful  claim,  on  her  part,  which  were  thrown  out  during  the  course  of 
the  negotiation. 

The  inference  drawn  from  the  proclamation  and  the  Quebec  Act  is, 
that  the  boundary  line  was  to  connect  the  head  of  the  Bay  des  Chaleurs 
with  the  head  of  the  Connecticut  River,  or  perhaps,  with*  the  highland 
which  divides  the  sources  of  the  Chandiere  from  those  of  the  Penobscot. 
*<  The  extremities  of  the  line  (it  is  said)  are  thus  known,  but  the  mode 
of  drawing  it  is  entirely  unexplained.     An  infinite  number  of  such  lines 
corresponding  with  the  description  given  in  the  treaty  may  be  drawn." 
As  far  as  the  United  States  are  concerned,  the  eastern  extremity  of  the 
line  is  not  the  Bay  of  Chaleurs,  but  the  place  where  it  was  necessary  to 
leave  the  dividing  highlands  in  order  to  reach  the  head  of  the  Bay  of 
Chaleurs.     On  what  point  of  the  highlands  the  intended  connection  with 
the  Bay  of  Chaleurs  was  to  take  place  was  left  undetermined  in  the  pro- 
clamation and  in  the  Quebec  Act,  which  did  not  even  mention  the  west- 
ern extremity  of  the  bay.     By  those  instruments,  the  point  in  question 
was  lefl  to  the  discretion  of  the  Crown,  but  could  not  subsequent  to  the 
treaty  be  west  of  the  due  north  line.     The  dividing  highlands  of  the  pro- 
clamation of  the  Quebec  Act  and  of  the  treaty  terminate  at  Cape  Rosier; 
but  they  must  be  left  at  some  point  east  of  the  due  north  line,  in  order 
that  tlie  contemplated  boundary  may  extend  to  the  western  extremity  of 
the  Bay  of  Chaleurs. 

Amongst  the  infinite  number  of  lines  corresponding  with  the  treaty 
which,  according  to  the  author  of  the  essay,  may  be  drawn  between  the 
head  of  the  Connecticut  and  that  of  the  Bay  of  Chaleurs,  he  proposes  as 
the  simplest  expedient  a  straight  line  from  oae  point  to  the  other.     And 
he  adduces,  as  corroborating  his  theory,  the  fact,  that  the  River  Risti- 
gouche,  which  is  now  the  boundary  between  Canada  and  New  Bruns- 
wick, and  the  northwest  angle  of  this  last  province,  which  practically  is 
at  the  intersection  of  that  river  with  the  due  north  line,  are  nearly  on  the 
straight  line  which  he  proposes.     He  adds  that  severed  of  the  maps  pub- 
lished between  the  years  1763  and  1783  had  placed  that  boundary  along 
the  Ristigouche,  and  that  New  Brunswick  had  never  exercised  jurisdic- 
tion beyond  that  river.     Whence  he  infers  that  the  Ristigouche  and  not 
the  line  of  dividing  highlands,  was  at  the  time  of  the  treaty  considered,  as 
the  southern  boundary  of  the  Province  of  Quebec  under  the  previous  acts 
of  the  British  Government. 

It  has  never  been  denied  that  subsequent  to  the  treaty,  the  boundary 
between  New  Brunswick  and  Canada,  and  consequently  the  north-west 


i    ^ 


:l  I 


1 


'!  \ 


!  I 


132 


.Veio  Suggestion. 


■I.      •>, 


m 


angle  of  Now  Brunswick  might  at  any  time  be  altered  by  Great  Britain. 
The  fact,  therefore,  that  the  Ristigouche  is  the  present  boundary,  and  that 
the  jurisdiction  of  New  Brunswick  does  not  extend  beyond  it,  proves 
nothing.  But  if  it  could  be  established,  that  that  river  was  the  acknow* 
ledged  boundary  at  the  time  of  the  treaty,  it  might  be  inferred  that  the 
dividing  highlands  and  the  north-west  angle  of  Nova  Scotia  contempla- 
ted by  the  treaty  were  not  south  of  that  river ;  and  perhaps  on  the  other 
hand,  that  the  point  at  which  it  was  necessary  to  leave  the  di'  'ding  high- 
lands in  ord^  to  strike  the  western  extremity  of  the  Bay  of  Chaleurs, 
had  been  supposed  to  be  near  the  sources  of  the  Ristigouche.  ^nd  ai 
the  publishers  of  maps  had  no  precise  data  in  that  respect,  it  is  not  as- 
tonishing that  some  of  them  should  have  thus  placed  the  north-west  angle 
and  the  boundary.  All  that  the  United  States  insist  upon  is,  that  the 
north-west  angle  of  Nova  Scotia  declared  by  the  treaty  must  necessarily 
have  been  that  which  had  been  prescribed  by  the  previous  acts  of  the 
British  Government ;  that  by  the  treaty  the  summit  of  that  angle  was 
placed  on  the  dividing  highlands  and  those  highlands  declared  to  be  one 
of  the  sides  of  that  angle  ;  and  therefore  that  neither  that  angle  nor  that 
boundary,  at  least  for  some  distance  east  of  the  summit  of  the  angle,  were 
understood  at  the  time  of  tht  .reaty  to  be  in  the  bed  of  the  River  Risti- 
gouche, or  any  where  else  than  on  the  aforesaid  dividing  highlands. 

The  gentleman  cannot  seriously  assert,  that  the  fact,  that  the  Ristigouche 
and  the  present  north-west  angle  of  New  Brunswick,  happened  to  be 
near  a  straight  line  drawn  from  the  western  extremity  of  Bay  of  Cha- 
leurs to  the  sources  of  the  Chaudiere  or  of  the  Connecticut,  were  at  all 
taken  into  consideration  when  that  boundary  was  established  by  the 
Crown,  or  agreed  on  with  its  approbation  by  the  two  provinces.  But, 
amongst  the  infinite  nnmber  of  lines  which  might  be  drawn  between 
the  two  points  aforesaid,  t'ae  straight  line  is  precisely  that  which  should 
in  the  first  place  be  rejected,  since,  had  that  been  the  boundary  contem- 
plated by  the  negotiators,  it  was  the  only  line  which  without  any  regard 
to  the  topography  of  the  country,  and  without  the  slightest  difHculty  they 
might  have  defined  with  precision.  When  the  author  of  the  essay  says, 
that  it  was  safer  and  simpler  for  those  negotiators  to  adopt  the  straight 
line,  than  to  trust  to  the  uncertain  information  respecting  the  course  of 
mountains  or  rivers  in  the  interior,  he  forgets  that,  instead  of  pursuing 
that  course,  they  described  the  boundary  only  in  reference  to  the  rivers 
intended  to  be  divided. 

But  it  is  altogether  denied,  that  the  treaty  is  susceptible  of  that  con- 
struction now  for  the  first  time  attempted  to  be  put  upon  it.  It  was  not 
till  thirty  years  after  the  date  of  the  Treaty  of  1783,  that,  at  Ghent,  the 
British  Government,  after  having  first  asked  a  variation  of  the  boui^'ivy 
and  a  cession  of  territory,  for  which  an  equivalent  might  have  been  ask- 


JVeto  Suggesiion. 


188 


liat  con- 
vaa  not 
jnt,  the 

leu  ask< 


ed,  did  for  the  first  time  suggest  that  there  was  a  doubt  whether  that  ter- 
ritory or  a  small  portion  of  it  did  not  under  the  Treaty  of  1783,  belong 
to  Groat  Britain.  In  the  year  1718,  the  claim  for  the  first  time  assumed 
a  definite  shape  ;  and  from  that  time  till  now  it  has  been  contended  that 
the  boundary  was  a  line  extending  about  one  hundred  and  twenty  miles 
in  a  straight  line  from  Mars  Hill,  to  one  of  the  sources  of  the  Chan, 
dicre,  along  highlands  which  divide  the  waters  of  the  St.  John  from  those 
of  the  Penobscot.  The  claim  was  in  that  shape,  and  thus  defined,  sub* 
mitted  to  the  King  of  the  Netherlands.  And  now  after  twenty  years 
of  discussion,  an  attempt  is  made  to  abandon  the  claim  so  long  contend- 
ed for  ;  and  it  is  for  the  first  time,  near  sixty  years  after  the  date  of  the 
Treaty,  discovered  that  the  boundary  prescribed  by  the  Treaty  was  not 
a  line  of  dividing  highlands,  ia  the  sense  in  which  those  expressions 
had  always  been  understood  by  both  parties,  and  by  every  individual 
who  had  attended  to  the  subject  both  before  and  since  the  Treaty,  but 
that  it  is  a  district  of  country  of  seven  millions  of  acres.  The  reason 
assigned  is,  that  the  wort^  <<  highlands"  used  alonehas  sometimes,  in  one 
instance  at  least,  been  applied  to  a  mountainous  district  of  country.  It 
is  not  less  true  that  the  territory  in  question  has  never,  as  a  whole,  laen 
designated  by  that  name,  or  by  any  other  name  whatever  till  called  the 
contested  territory.  The  true  reason  is  to  be  found  in  the  physical  im- 
possibility of  finding  any  other  line,  than  that  claimed  by  the  United 
States,  which  can  fulfil  the  express  condition  of  dividing  tho  rivers 
specified  by  the  Treaty.  The  boundary  must  ultimately  be  a  line,  and 
the  object,  in  pretending  that  the  whole  contested  territory  is  the  boun. 
dary  prescribed  by  the  Treaty,  is  to  have  ultimately  for  a  boundary  a 
line  that  will  not,  in  conformity  with  the  Treaty,  divide  the  rivers  speci- 
fied by  its  terms.  It  would  have  been  shorter  to  propose  that  the  clause, 
which  imposes  on  the  boundary  along  the  highlands  the  condition  of 
dividing  the  specified  rivers,  should  be  struck  off  from  the  Treaty. 

Two  Powers  might  under  certain  circumstances,  and  particularly  in 
America,  agree  to  leave  between  their  possessions  a  certain  uninhabit- 
ed tract  of  country,  not  to  be  occupied  by  either  at  least  for  a  limited 
time.  But  most  certainly  such  agreement  must  be  made  in  express 
terms,  and  never  can  be  implied  or  inferred,  when  the  parties  actually 
declare  and  define  what  their  boundaries  shall  be.  No  instance  can  be 
adduced  of  any  treaty  declaratory  of  boundaries,  and  having  no  special 
excepl'.on,  ever  having  been  concluded  between  two  countries,  in  which 
the  boundary  was  a  district  of  country  and  was  not  a  boundary  line  in 
the  sense  in  which  it  is  universally  understood,  viz :  a  line,  a  dividing 
ridge,  the  top  of  a  chain  of  mountains,  a  river  or  a  lake. 

In  the  present  instance,  the  negotiators  describe  every  other  part  of 
the  boundary  with  the  utmost  precision  of  which  it  was  susceptible.     It 

12 


■11 


ivi 


134 


.Veto  Suggestion. 


is  in  every  case,  a  due  north,  west,  or  east  straight  line,  or  the  line  along 
the  middle  of  rivers  or  lakes,  or  a  lino  between  two  determined  points, 
(from  the  entrance  of  the  Lake  of  the  Woods  to  the  most  north-western 
point  thereof,)  or,  if  an  inflected  line,  by  three  points  (from  the  en* 
trance  of  Lake  Superior,  through  Lake  Superior,  north-ward  of  the 
Isles  Royal  and  Philipeaux,  to  the  Long  Lake.)  It  has  been  proved 
beyond  contradiction,  that  they  had  a  knowledge  of  the  topography  of 
the  country  through  which  the  north-eastern  boundary  was  to  pass,  am- 
ply sufficient  to  enable  them  to  describe  any  they  might  have  contem- 
plated, with  the  utmost  precision  in  reference  to  rivers. 

Finally,  after  the  absolute  rejection  of  the  proposal,  to  leave  the  ques- 
tion of  the  boundaries  between  Massachusetts  and  ^ova  Scotia,  embra- 
cing of  course  the  north.west  angle  of  that  Province  and  the  boundary 
with  Canada,  unuettled  for  the  present ;  and  after  the  negotiators  had 
positively  determined,  in  order  to  prevent  any  future  disputes,  to  declare 
and  establish  those  boundaries  by  the  treaty  itself;  we  are  now  told  that, 
with  that  determination  and  with  all  the  knowledge  sufRcient  to  carry  it 
into  effect,  they  actually  made  the  whole  district  of  country,  the  bounda- 
ries of  which  they  had  determined  to  establish,  to  be  the  boundary  itself; 
or  in  other  words,  that  after  having  determined  to  establish  the  boundary 
lines  in  question,  they  left  the  whole  subject  precisely  as  they  had  found 
it,  to  be  thereafter  a  subject  of  dispute  and  discord  between  the  two 
Powers. 

The  author  of  the  essay  has  displayed  a  most  liberal  and  proper  spirit, 
in  the  view  he  has  taken  of  the  exaggerated  importance  heretofore  as- 
cribed to  the  subject  of  difference  between  the  two  countries,  of  the  ne- 
cessity of  preserving  t'..e  friendly  relations  between  them,  of  the  extreme 
folly  of  running  the  risk  of  a  rupture  for  such  an  object.  He  is  most 
sincere  in  his  wishes  that  the  difference  may  be  speedily  settled  ;  and  it 
is  much  to  be  regretted  that  he  should  by  bis  suggestion  have  uncon- 
sciously thrown  another  obstacle  to  an  amicable  reference  to  a  third 
party. 

In  such  a  reference  the  United  States  have  no  guarantee  but  in  the 
justice  of  their  cause  and  in  the  disinterestedness  and  firmness  of  the 
Arbiter.  No  happier  selection  could  have  been  made  than  that  of  the 
King  of  the  Netherlands :  an  enlightened  and  conscientious  Monarch, 
not  afraid  of  labor,  and  who  would  examine  *he  subject  and  decide  him- 
self. I  am  very  sure,  that,  entertaining  doubts,  which  I  must  be  permit- 
ted to  say  I  do  not  share,  on  one  branch  of  the  subject,  yet  not  such  as 
positively  to  decide  upon  it,  he  proposed  such  an  arrangement  as  ap- 
peared to  him  most  equitable  under  all  the  circumstances  of  the  case. 
But  the  United  States  have  no  means  of  influencing  a  decision.  Ge- 
nerally speaking,  it  would  be  diflicult  to  select  any  Power  acceptable  to 


JVew  Suggeation. 


135 


along 
points, 
restern 
tie  en- 
of  the 
proved 
phy  of 
IB,  am- 
outem- 

le  ques* 
embra- 
oundary 
ore  had 
I  declare 
M  that, 
carry  it 
bounda- 
ry itself; 
jouudary 
lad  found 
the  two 

er  spirit, 

fore  as- 

thene- 

extreme 

is  most 

;  and  it 

uDcon- 

a  third 

lit  in  the 
|ss  of  the 
It  of  the 
[onarch, 
;ide  him- 
permit- 
|t  such  as 
It  as  ap- 
Ihe  case. 
In.     Ge- 
Iptable  to 


both  parties  who.  from  their  relative  geographical  situation,  and  political 
position,  has  not  a  greater  iRterost  in  cultivating  the  friendship  of  Great 
Britain  in  preference  to  that  of  the  United  States.  Hence  the  necessi- 
ty that  there  should  be  nothing  vague,  indefinite,  or  arbitrary  in  the 
question  submitted  to  the  Umpire  :  and  it  is  for  that  reason  that  his  au- 
thority was  limited  to  the  decision  of  a  boundary  in  conformity  with  the 
provisions  of  the  treaty  of  17S3. 

If  upon  a  view  of  the  whole  case,  the  arbiter  thinking,  as  the  author 
of  the  essay  does,  that  neither  of  the  two  lineo,  heretofore  claimed  by 
the  two  parties  respectively,  fulfils  the  conditions  of  the  treaty ;  and  be- 
lieving, as  appears  to  me  iiidubitab'e,  that  if  the  American  line  does 
not,  no  other  possible  line  can  divioe  the  specified  rivers,  ha  must  ne- 
cessarily decide  that  the  treaty  cannot  be  executed  :  and,  in  that  case, 
the  two  Powers  would  be  lefl  in  no  worse  situation  than  they  now  are, 
and  must  settle  the  difference  by  an  amicable  adjustment  between  them, 
selves. 

But  the  author  of  the  essay  contends,  that  it  is  not  necessary  that  the 
boundary  line  should  actually  divide  the  rivers.  He  thinks  that  provid- 
ed it  unites  the  Bay  des  Chaleurs  and  the  sources  of  the  Chandierr,  it 
will  be  in  conformity  with  the  provisions  of  the  treaty,  and  therulbre 
tb  out  of  the  infinite  number  of  Hues  which  may  be  thus  drawn,  the 
"  may  select  any  one  he  pleases  under  the  authority  given  to  him 
to  uecide  according  to  the  provisions  of  the  treaty. 

In  vhat  view  of  the  subject,  it  is  a  mockery  to  say  that  his  business 
will  be  <'  to  fix  the  position  of  the  northwest  angle  of  Nova  Scotia,  and 
mark  out  the  unascertained  portions  of  the  boundary  according  to  the 
provipiions  of  the  treaty,  without  determining,  previousiy  to  the  forma- 
tion of  a  convention,  any  of  the  conditions  on  which  the  decision  is  to 
be  made."  The  author  expressly  contends  that  the  entire  upper  busins 
of  the  St.  John  and  Ristigouche,  that  is  to  say,  the  whole  contested  ter- 
ritory are,  according  to  the  treaty,  the  boundary  intended  to  divide  the 
waters  of  the  St.  Lawrence  from  those  of  the  Atlantic  Ocean  ;  and  he 
insiuts  that  the  treaty  prescribes  nothing  concerning  the  manner  in 
which  the  ultimate  boundary  line  is  to  be  run,  provided  it  keeps  within 
the  limits  of  those  basins  and  unites  the  two  extremities  which  he  has 
designated.  The  proposition  is  simply  that,  under  the  proposed  refer- 
ence, the  Arbiter  should  have  a  right  to  decide  what  shall  be  the  bounda. 
ry  line  without  9ny  re  ,ard  to  the  provision  of  the  treaty  which  directs 
that  boundary  to  be  along'the  highlands  which  divide  the  specified  rivers. 
It  is  nothing  more  or  less  than  a  renewed  attempt  to  dispense  with  that 
express  and  fundamental  provision. 

Whether  the  government  of  the  United  States  and  the  State  of  Maine 
will  be  disposed  to  refer  the  subject  in  such  unrestricted  and  indefinite 


V<>ii 


i  ■ 


136 


Report  ofMesn-$. 


manner,  it  is  not  for  me  to  say  :  nor  do  I  knoT  bow  far  the  govciTt- 
raent  of  Great  Britain  may  coui..enance  the  suggestion.  But  it  gives 
such  new  aspect  to  the  question  of  reference,  that  it  cannot  but  protract 
and  embarrass  the  pending  negotiations  on  that  subject. 

If  referred  ia  that  indefinite  manner  and  without  a  previous  under- 
standing with  Great  Britain,  the  Arbiter  will  be  authorized,  first  to  de- 
cide whether,  according  to  the  new  suggestion,  the  whole  disputed  ter- 
ritory is  the  boundary  prescribed  by  the  treaty,  and  if  he  should  decide 
this  affirmatively,  any  line  whatever,  within  ^e  limits  of  that  territory, 
which  he  might  deem  proper  to  designate,  would  be  the  boundary  line 
according  to  the  terms  of  the  treaty.  On  that  principle  it  is  not  per- 
ceived, for  what  reason  the  author  of  the  essay  considers  the  award  of 
the  King  of  the  Netherlands  as  not  binding  on  the  parties.  According 
to  his  theory,  the  line  recommended  by  the  King  conformed  as  well 
to  the  terms  of  the  treaty  as  any  other. 


No.  III. 


Observations  on  the  report  of  Messrs.  Featherstonhaugh  and  Mudge. 

The  important  questions  at  issue  between  the  two  Powers,  are  : 

In  reference  to  the  British  line  as  heretofore  claimed  or  a3  modified 
by  tho  late  English  Commissioners  ;  whether  Highlands  which,  for  three- 
fifth;,  of  the  distance,  divide  the  waters  of  the  Penobi:cot  from  those  of 
the  St.  John,  are  Highlands  which  divide  rivers  that  empty  themselves 
into  the  River  St.  Lawrence  from  those  which  fall  into  the  Atlantic 
Ocean. 

As  relates  to  the  boundary  Uniformly  claimed  by  the  United  £  totes  ; 
whether  the  St.  John  and  the  Ristigouche  are  under  the  treaty  to  be 
considered  as  falling  into  the  Atlantic  Ocean  ;  and  whether  the  term 
"  Highlands  dividing  certain  specified  riyers"  implies  a  mountainous 
^Tound  having  peaks  or  visible  elevations. 

As  applicable  to  both  lines ;  whether  the  Negotiators  had  a  kr  ow- 
ledge  of  the  topography  oi  tho  country,  sufficient  to  enable  them  to  de- 
scribe with  precision,  in  reference  to  rivers,  any  boundary  they  intend- 
ed to  prescribe. 

Tho  report  of  the  late  Britii^h  Commissioners  is  silent  on  the  two 
first,  and  tnrows  no  additional  light  on  the  two  last  questions.  The  first 
part  and  the  latter  port!  n  of  the  second  part  treat  only  of  points  of  sub- 
ordinate importance.    Tbnur^  rejecting  one  of  the  poi^ition.s  assumed 


Featherslonhaugh  and  Mtidge. 


187 


&  totes; 
ty  to  be 


krow- 

to  de- 

iiitend- 

llhe  two 
?he  first 
of  sub- 

Itssumed 


by  ilijir  predecessors,  the  Commissioners  appear  to  have  taken  for 
granted,  that  the  true  questions  at  issue  had  been  definitely  settled  by 
the  former  agents  of  the  British  Government. 

The  first  part  of  the  report  is  intended  principally  to  prove  that  Mas- 
sachusetts had  not  at  the  date  of  the  treaty  any  claim  to  the  disputed 
territory.  This  proposition  will  be  examined  in  detail,  not  on  account 
of  its  intrinsic  importance,  but  because  the  Commissioners  consider 
that  point  ^h  one  concerning  which  they  have  made  a  great  discovery. 

By  tho  ciK  ■'•of  1791,  the  territory  called  Acadia  or  Nova  Scotia, 
and  all  that  tract  of  lani  lying  between  the  said  territories  of  Nova 
Scotia  and  the  said  Province  of  Main,  (meaning  the  ancient  ]?rovinco 
of  Main  which  was  bounded  on  the  east  by  the  Kennebec  River,)  were 
annexed  to  the  Province  of  Massachusetts*  Bay. 

It  will  be  seen,  by  reference  to  the  Introduction  to  the  preceding  ar- 
gument, that,  by  the  operation  of  the  treaty  of  Ryswick,  Nova  Scotia 
was  severed  from  Massachusetts,  and  erected  into  a  separate  govern, 
metkt  after  its  cession  to  Great  Britain  by  the  treaty  of  Utrecht ;  that 
it  was  aflerwarJs  questioned  by  the  British  Government,  whether  the 
tract  of  country  lying  between  Nova  Scotia  and  Kennebec  was  not  also 
taken  from  iMassachusetts'  Bay  by  the  operation  of  the  tieaties  of  Breda 
and  Ryswick  ;  that,  notwithstanding  the  opinion  given  in  1731  in  fa- 
vour of  the  claim  of  Massachusetts  by  the  Law  officers  of  the  Crow^ 
the  British  Cabinet  did  not  consider  the  question  as  defin'lively  settled 
as  late  as  the  years  1763-1770  ;  but  that  the  question  respecting  tho 
validity  of  a  charter  couid  not  be  decided  otherwise  than  by  a  legal  pro- 
cess, and  that  this  was  never  attempted  by  the  British  Government. 

As  regards  that  objection  which  embraces  not  only  the  territory  now 
disputed,  but  the  claim  of  Massachusetts  to  the  whole  country  along  ihe 
Sea  Coast  between  the  St.  Croix  and  the  Kennebec,  the  report  does  not 
appear  to  contain  any  thing  which  had  not  already  been  mentioned. 
But  there  is  an  omission,  concerning  the  restitution  by  Great  Britain 
to  France  agreed  on  by  the  tr  -nty  o^  Ryswick,  as  understood  by  the 
British  Government  subsequent  to  that  treaty.  The  following  pass.ige 
occurs  in  the  first  American  Statement  laid  before  the  King  of  tho 
Netherlands  : 

"  Great'  Britain,  however,  agre.d  by  the  Treaty  of  Ryswick  of  20{h 
September,  1697,  to  restore  to  France  'all  countries,  islands,  forts,  and 
colonies,  wheresoever  situated,  which  the  French  did  possess  before  the 
declaration  of  war.'  Acadia,  or  Nova  Scotia,  being  clearly  embraced 
by  those  expressions,  and  being  thus  severed  from  the  British  Domin- 
ions, the  clause  of  the  Massachusetts'  Charier,  which  annexed  that  ter- 
ritory to  r.Iassachusetts,  was  virtually  repealed,  and  became  a  nullity. 
Tke  understanding  of  the  British  Government  of  the  extent  of  that  res- 

12* 


i»i  ■ 


138 


Report  of  Messrs, 


m  W 


iitntion,  tcill  be  found  in  the  following  sentence  of  a  letter  from  the  Lords 
of  the  Board  of  Trade,  dated  ZOth  October^  1700,  to  tJus  Earl  of  Bella, 
mont,  the  Governor  of  Massachusetts,  viz :  *'  as  to  the  Boundaries,  we 
have  always  insisted,  and  shcdl  insist  upon  the  English  right  as  Jar  as 
the  River  St.  Croix." 

The  first  part  of  that  passage,  as  far  as  the  word  "  nullity  "  is  quoted, 
but  the  latter  part  which  shows  how  the  obligation  to  restore  was  under, 
stood  by  the  British  Government,  is  omitted  ia  the  report  (page  15,) 
and  is  not  stated  any  where  else. 

It  is,  however,  principally  to  the  limits  of  the  claim  of  Massachusetts, 
that  the  objections  in  the  report  do  apply.  In  that  respect,  the  report 
bos  adued  two  facts  to  those  which  had  been  previously  quoted ;  first, 
that  the  French  Government  of  Acadia  was,  in  the  Commission  of 
1603  to  De  Monts,  limited  on  the  north  by  the  46th  parallel  of  latitude  ; 
secondly,  that  the  intervening  possession  of  New  York  by  the  Dutch 
was  at  least  one  of  the  reasons  why  the  Grant  of  1664  to  the  Duke  of 
York  was  renewed  in  1674.  The  renewed  grant,  however,  embraced 
both  New  York  and  Sagadahock. 

It  is  impossible  to  say  how  far  the  limits  of  Acadia  were  enlarged  or 
altered  by  France  subsequent  to  the  first  commission  of  De  Monts  in 
1603.  And,  if  the  respective  claims  of  France  and  of  Great  Britain 
were  the  subject  of  discussion,  I  would  admit  that,  in  my  opinion,  and 
contrary  to  the  construction  put  on  the  Treaty  of  Ryswick  by  the  Board 
of  Trade  in  their  letter  to  the  Earl  of  Bellamont,  the  restitution  to 
France,  as  agreed  on  by  the  said  Treaty,  of  all  the  countries  which  she 
did  possess  before  the  war,  extended  as  far  west  as  the  Penobscot.  But, 
in  a  discussion  between  Great  Britain  and  a  British  Colony,  respecting 
the  chartered  boundaries  of  that  Colony,  the  public  Acts  of  Great  Bri- 
tain and  her  construction  of  her  treaties  with  foreign  nations  can  alone 
be  taken  into  consideration,  unless  set  aside  by  a  legal  process  and  de- 
cision. 

I  agree  entiiely  with  the  Commissioners  in  the  opinion,  that  the 
claim  of  Massachusetts,  both  as  to  the  whole  country  in  question  and 
as  to  its  limits,  was,  till  the  year  1763,  exclusively  derived  from  the 
Charter  of  1791.  The  reasoning  adduced  in  178"2  by  a  committee  of 
Congress,  in  order  to  show  that  the  claim  of  Massachusetts  might  ex- 
tend along  the  Sea  Coast  as  far  east  as  the  St.  John,  appears  to  me  alto- 
gether erroneous.  The  claim  is  founded  on  the  incorrect  presumption, 
that  the  former  grant  to  the  Duke  of  York  might  have  been  interpreted, 
as  extending  to  that  river.  But  supposing  that  conjecture  to  have  been 
well  founded,  there  was  an  end  to  the  Grant  and  to  its  boundaries.  The 
Grant  had  merged  in  the  Crown  at  the  accession  of  James  2d  to  the 
throne,  and  was  no  longer  in  existence.    No  allusion  whatever  is  made 


c 
a 

I 
I 
I 

tl 


Fealherstonhaugh  and  Mudge. 


139 


r 


that  the 
ion  and 
rom  the 
nittee  of 
ight  ex- 
me  alto- 
mption, 
•pre  ted, 
ive  been 
s.     The 
!d  to  the 
is  made 


jrc 


to  it  in  the  Charter,  the  boundaria."  of  which  are  determined  by  the 
charter  itself  and  no  where  else.  The  grant  had  been  quoted  for  the 
purpose  of  showing  the  cliain  of  title,  and  that  there  was  not  at  the  date 
of  the  charter  any  previous  conflicting  British  claim  still  in  exist- 
ence. 

For  the  same  reason,  the  allusions  made  in  the  report  to  the  boun- 
daries of  that  grant,  as  applicable  to  the  chartered  limitd  of  Massachu- 
setts, are  wholly  irrelevant. 

It  is  remarkable  that  the  charter  of  Massachusetts  should  have  been 
quoted  in  the  report  iii  detached  paragraphs,  and  omitting  the  only  por- 
tion which  relates  to  its  northern  and  eastern  boundaries,  but  in  lieu 
thereof  alluding  to  the  boundaries  of  the  grant  to  the  Duke  of  York. 
The  passages  of  the  report  in  which  the  charter  is  quoted  will  be  found 
in  the  extracts  appended  to  these  observations. 

«  Now,  it  appears  to  me,  that  the  claim  of  Massachusetts'  Bay  would 
have  been  more  clearly  exhibited,  by  quoting  together  all  that  part  of  the 
charter  which  related  to  boundaries,  and  that  the  inferences  of  the  com- 
missioners might  have  been  more  correct  and  appropriate,  had  they  ad- 
verted to,  instead  of  omitting  the  only  part  of  the  charter  which  shows, 
what  were  the  intepded  northern  and  eastern  boundaries  of  the  territo- 
ries east  of  the  Kennebec  annexed  to  the  Colony.  Referring  to  the 
Introduction  to  this  argument  for  tho  clauses  at  large,  that  now  aU 
luded  to  is  as  follows  : 

"  That  no  grant  or  grants  of  any  lands  lying  or  extending  from  the 
River  of  Sagadahock  to  the  Gulf  of  St.  Lawrence  and  C'  tda  Rivers 
and  to  the  main  sea  northward  and  eastward,  to  be  made  or ,  ^d  by  the 
Governor  and  General  Assembly  of  our  said  Province,  be  of  any  force, 
validity,  or  effect,  until  we,  our  heirs  and  successors,  shall  have  signified 
our  or  their  approbation  of  the  same." 

The  words  in  italic  are  no  where  quoted  in  the  report,  though  the  re- 
servation of  the  Crown  to  approve  the  grants  is  quoted  (page  18 ;)  and 
the  term  "  SagaJahock"  is  substituted  for  the  descriptive  words  in  the 
charter :  which  substitution  may  refer  the  reader  to  the  defunct  grant  to 
the  Duke  of  York,  and  to  its  boundaries  as  quoted  before  in  the  report, 
(page  14).  All  the  inferences  and  suggestions  in  the  report,  therefore, 
which  may  have  been  deduced  from  the  terms  of  that  Grant  from  any 
other  source  than  the  terms  of  the  charter  fall  to  the  ground  ;  and  the 
argument  resolves  itself  into  this. 

The  territories  onnexed  by  the  chirter  to  Massachusetts'  Bay  were, 
Acadia  or  Nova  Scotia  and  the  tract  f  land  lying  between  it  and  the 
Province  of  Main :  (or  in  other  woroi,  to  the  River  Sagadahock  or 
Kennebec,  which  by  the  charter  was  the  eastern  boundary  of  Main  :) 
the  boundaries  of  both  Nova  Scotia  and  the  said  tract  of  land,  were 


{     1 


m 


"■■^s 


i. 


140 


Report  of  Messrs. 


northward  and  eastward  to  the  Gulf  oi*  St.  Lawrence  and  Canada 
Rivers,  and  to  the  main  sea.  If  it  could  be  proved,  therefore,  that  the 
boundary  between  Nova  Scotia  and  the  said  tract  lying  west  of  it, 
and  still  claimed  by  Massachusetts,  was  at  the  date  of  the  charter  a 
north-west  line  striking  the  River  St.  Lawrence,  at  or  near  Quebec,  it 
would  follow  that,  after  the  acknowledged  separation  of  Nova  Scotia 
from  Massachusetts'  Bay,  this  Colony  did  not  extend  to  the  River  St. 
Lawrence,  and  the  whole  or  greatest  portion  of  the  now  disputed  terri- 
tory \ms  without  its  boundaries.  This  is,  in  fact,  what  the  commission- 
era  contend  for.  On  that  they  principally  rely  and  announce  some  im- 
portant discoveries  mi'de  by  them,  concerning  the  grant  of  Nova  Scotia, 
to  Sir  William  Alexander  in  1621.  It  is  undoubtedly  true  that  the 
boundaries  of  Nova  Scotia  were  not  described  in  any  other  public  act  of 
Great  Britain  at  the  date  of  the  chaiter;  though  it  cannot  be  conceded 
that  this  was  equally  true  at  the  date  of  the  Treaty  of  1783.  The  case, 
as  stated  in  the  report,  will  be  found  in  the  appended  extracts. 

It  will  there  be  seen  that  the  object  of  the  commissioners  is  to  prove, 
that  the  line  described  in  the  grant,  as  one  drawn  from  the  western  source 
of  the  St.  Croix  towards  the  north  to  the  nearest  roadsted,  river  or  spring 
emptying  itself  into  the  great  River  de  Canada ;  (whence  the  boundary 
proceeds  eastwardly  along  the  sea-shores  of  the  said  river)  means  a  north- 
west line,  and  at  the  same  time  a  line  to  the  source  of  the  River  Chan, 
diere,  and  then  down  that  river  to  its  mouth  to  Quebec.  The  extract 
from  the  report  hereto  appended  must  be  compared  with  No.  XIV,  of 
the  recapitulation  of  the  report  hereiuaAer  quoted.  With  respect  to  a  line 
drawn  from  the  western  source  of  the  St.  Croix  to  the  nearest  source  of 
the  Chandiere,  it  would  be  a  Hue  towards  the  west  and  not  towards  the 
north. 

It  will  also  be  seen  by  the  extract,  that  the  great  discovery,  by  which 
the  theory  of  a  north-west  line  exclusively  of  any  other  is  sustained, 
consists  in  the  insertion  in  the  text  of  a  comma,  before  the  words 
towards  the  north,  where  first  mentioned  in  the  grant. 

In  the  authentic  Latin  copy  of  the  grant,  ccimmumcated  by  the  Bri. 
tish  Government,  there  are  no  commas.  The  copy  is  transcribed  from 
the  report  as  published  by  order  of  Parliament ;  and  a  comma  is  there 
inserted  after  the  words  versus  Sepientrionem  where  first  mentioned  ; 
which  makes  the  passage  read  as  it  has  heretofore  always  been  read. 
It  must  have  been  so  placed  by  the  compositor  of  the  Parliamentary 
Press.  The  commissioners  clearly  intended  that  the  comma  should  be 
placed  before  and  not  after  versus  Sepientrionem,  and  it  must  be  so  un- 
derstood by  the  reader. 

Whether  this  emendation,  which  is  the  great  discovery  of  the  com- 
missioners, be  admissable,  is  left  to  the  decision  of  critical  scholars. 


Feather stonhaiigh  and  Mudge. 


141 


un- 


My  business  is  with  the  reasoning  of  the  report ;  aud  the  reason  assign- 
i'.d  for  the  emendation  is  not  sufficient,  (e) 

The  word  north,  applied  to  the  latitude  of  any  country,  known  to  be 
situated  north  of  the  equator,  though  superfluous,  is  perpetually  used, 
and  it  is  thus  used  several  times  in  the  Treaty  (to  the  forty-fifth  degree 
of  north  latitude.)  Every  body  knows  that  the  latitude,  whether  north 
or  south,  is  always  counted  from  the  equator.  The  words  ab  equinoc- 
iiali  liiiea,  in  the  grant,  are  equally  superfluous,  and  they  correspond 
with  the  words  in  the  Treaty,  "in  latitude  of  thirty-one  degrees  north  of 
the  equator." 

The  object  of  the  emendation  cannot  have  been  to  connect  the  words 
versus  Seplentrionem  with  the  words  ad  occidantem  o(  the  next  sentence. 
For  if  the  union  of  the  two  was  necessary  in  order  to  express  the  north- 
west, it  would  follow  that  versus  Septentrionem  alone  was  not  sufficient 
for  that  purpose.  But  the  true  object  of  the  emendation  was  to  detach 
those  words  from  the  first  sentence,  where,  being  applied  to  latitude  from 
the  E"/-  .ior,  they  must  necessarily  mean  due  north.  And  the  commis- 
sioners call  the  tracing  on  maps  of  a  due  north  line  from  the  source  of 
the  St.  Croix  to  the  St.  Lawrence,  an  erroneous  construction  of  the  ex- 
pression towards  the  north. 

But  those  words  mean  a  line  which  inclines  more  to  the  north  than  to 
the  east,  or  the  west,  and  they  necessarily  embrace  a  due  north  line. 
(Jnder  the  broadest  legitimate  constructior^  it  cannot  vary  more  than 
from  due  north-east  to  due  north-west.  The  American  translation  quo- 
ted in  the  preceding  passage  of  the  report  is  undoubtedly  incorrect  in 
substituting  the  word  JVorth  for  towards  the  JS'orth :  first,  instead  of 
nearest  is  also  wrong,  though  in  fact  it  has  the  same  meaning ;  but  Bay, 
as  a  translation  of  naviwn  Slatio  is  admissible,  since  Bay  of  Fundy, 
with  the  adjunct  great,  and  St.  Mary's  Bay,  are  both  designated  in  the 
Grant  as  naviwn  Stationes.  I  coincide,  however,  in  the  opinion  of  the 
commissioners  that  roadsted  (or  road)  is  the  best  equivalent.  "  Naval 
Station,"  in  the  literal  translation  of  the  report,  has  not  in  English  any 
definite  meaning,  and  would  apply  to  vessels  blockading  or  watching 
the  entrance  of  a  port  with  as  much  propriety  as  to  a  bay  or  road. 

But  the  scrupulous  literal  translators  should  not  have  rendered  the 
words,  per  maris  oras  liltorales,  by  the  words  "  by  the  g«//' shores"  in- 
stead of  "  sea  shores."  The  reason  for  that  alteration  seems  to  have 
been,  that  the  words  sea  shores,  as  designating  the  place  where  the  line 
running  towards  the  north  must  strike  the  St.  Lawrence,  Seemed  to  ex- 
clude Quebec  and  the  upper  part  of  the  river. 

(e)  The  reason  assigned,  is  that  the  words  "  versus  Septentrionem,"  if  connected 
with  what  precedes,  are  superfluous.  But  the  reader  must  refer  to  the  appended  ex- 
tracts from  the  Report. 


!;    I 


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■  \ 

i0\ 


Hi 


i  1 


1  nl 


142 


Report  of  Messrs. 


In  order  to  show  how  the  western  boundary  of  the  Grant  to  Sir  Wil' 
Ham  Alexander  was  understood,  the  commissioners,  instead  of  seeking 
for  ancient  English  maps,  have  appealed  to  a  Venetian  map  by  Coro< 
nelli,  dated  1689  ;  at  which  tim*^,  as  they  say,  the  nature  of  the  Grant 
must  have  been  well  understood.  How  it  was  understood  by  Coronelli 
will  appear  by  looking  at  his  map,  in  which  he  has  placed  the  whole  of 
Nova  Scotia  west,  instead  of  east  of  the  River  St.  Croix.  The  country 
east  of  it,  or  the  present  province  of  New  Brunswick  he  calls  Eteche- 
mius :  he  transposes  the  Penobscot  and  the  Kennebec  and  confines 
Acadia  to  the  peninsula.  The  commissioners  have  given  two  copies 
of  the  map,  in  one  of  which  there  is  a  coloured  line  from  the  source  of 
the  St.  Croix  to  Bay  des  Chaleurs.  Which  of  the  two  is  the  genuine 
transcript  I  cannot  say. 

{-  It  is  further  stated  in  the  report  tb<it  the  above  quoted  American  trans- 
lation is  an  official  one,  being  app.  nded  to  a  document  communicated 
by  the  President  of  the  United  States  in  January,  1838,  to  the  House  of 
Representatives.     And  the  Jommissioners  in  their  recapitulation  say  : 

«  XYI.  It  appears  that  in  the  discussions  which  have  been  hitherto 
"  bad  on  the  tubject  of  the  Grant  of  Nova  Scotia  in  1621,  reference  has 
^'''Iways  been  had  to  an  American  translation  of  that  Grant  which  was 
''  defective ;  and  that  all  the  omissions  and  inaccuracies  in  that  defective 
« translation  singularly  concur  to  obscure  the  nature  of  the  claim  which 
"  Her  Majesty's  Government  is  interested  to  maintain." 

The  only  Agents  ever  employed  by  the  Government  of  the  United 
States,  in  the  discussions  with  that  of  Great  Britain,  concerning  the 
north-eastern  boundary,  have  been  Mr.  Bradley,  under  the  Ghent  Com- 
mission, and  Albert  Gallatin  and  William  P.  Preble,  to  prepare  the 
Statements  of  the  case  laid  before  the  King  of  the  Netherlands. 

A  passage  already  mentioned  in  page  15  of  the  first  of  those  State- 
ments has  been  quoted  in  the  report  of  the  commissioners  (pagel5.) 
Had  those  gentlemen  only  turned  the  leaf  of  the  American  Statement, 
they  would  have  seen  (page  12)  the  translation  of  the  Grant  used  by 
the  two  last  mentioned  American  Agents,  viz  : 

"  Beginning  at  Cape  Sable,  in  43°  north  latitude,  or  thereabout,  ex- 
tending thence  westwardly  along  the  Sea  shore,  to  the  road  commonly 
called  St.  Mary's  Bay  ;  thence  toioards  the  north  by  a  direct  line  cross- 
ing the  entrance  or  mouth  of  that  great  ship  road,  which  runs  into  the 
eastern  tract  of  land  between  the  territories  of  the  Souriquois  and  of  the 
Etchemins,  (Bay  of  Fundy)  to  the  river  commonly  called  St.  Croix, 
and  to  the  most  remote  spring  or  source,  which,  from  the  western  part 
thereof,  first  mingles  itself  with  the  river  aforesaid  ;  from  thence,  by  an 
imaginary  direct  line,  which  may  be  conceived  to  stretch  through  the 
land,  or  to  run  toioards  the  north,  to  the  nearest  road,  river  or  spring 


Featheratonhaugh  and  Mudge. 


143 


3tate- 
Jl5.) 
lent, 

bd  by 

ex- 
lonly 
:ross- 
lo  the 
the 
proix, 

part 
)y  an 
the 
Ipriug 


emptying  itself  into  the  great  river  de  Canada;  (River  St.  Lawrence  ;) 
ttnd  from  thence  proceeding  eastwardly  along  the  Sea  shores  of  the  said 
river  de  Canada,  to  the  river,  road,  port,  or  shore,  commonly  known  and 
called  by  t^e  name  of  Gachepe  or  Gaspe. 

Mr.  Bradley,  in  his  opening  argument,  which  is  quoted  in  page  43  of 
the  Report  of  Messrs.  Featherstonhaugh  and  Mudge,  presented  to  the 
commissioners  appointed  under  the  fifth  article  of  the  Treaty  of  Ghent, 
an  extract  of  the  Latin  text  of  the  Grant  to  Sir  William  Alexander,  toge- 
ther with  the  following  translation,  which  has  also  escaped  the  notice  of 
Messrs  F.  and  M. 

"  By  the  tenor  of  this  our  present  charter,  we  do  give,  grant,  and  con- 
vey to  the  said  Sir  William  Alexander,  his  heirs  or  assigns,  all  and  sin- 
gular the  lands  of  the  continent  and  Islands  situated  and  lying  in  Ameri- 
ca within  the  head  lands  or  promontory  commonly  called  Cape  Sable, 
lying  near  the  latitude  of  forty-three  degrees  or  thereabout  from  the  equa- 
uoctial  line,  toicards  the  north,  from  which  promontory  stretching  to- 
wards the  shore  of  the  sea  to  the  west  to  the  road  of  ships  commonly 
called  St.  Mary's  Bay,  and  then  toieards  the  north  by  a  direct  line  cross- 
ing the  entrance  or  mouth  of  that  great  road  of  ships  which  runs  into 
the  eastern  tract  of  land  between  the  territories  of  the  Souriquoisandthe 
Etchemius  to  the  riv^r  commonly  called  by  the  name  of  St.  Croix,  and 
to  the  most  remote  spring  or  fountain  from  the  western  part  thereof, 
which  first  mingles  itself  with  the  river  aforesaid,  whence  by  an  imagi- 
nary direct  line  which  may  be  conceived  to  go  through  or  run  toicards 
the  north  to  the  nearest  road  of  ships,  river  or  spring  emptying  itself 
into  the  great  river  of  Canada — and  from  thence  proceeding  towards  the 
east  by  the  shores  of  the  sea  of  the  said  river  of  Canada  to  the  river  road 
of  ships  or  shore  commonly  known  and  called  by  the  name  Gachepe  or 
Gaspe." 

It  is  believed  that  the  translations  used  in  the  only  discussions  which 
have  takea  place  between  the  two  Governments  on  the  merits  of  the 
case  will  appear  to  have  been  free  from  the  objections  raised  in  the  re- 
port. The  grant  was  mentioned  on  the  part  of  the  United  States  to 
show  the  chain  of  title,  and  the  origin  of  the  designation  of  a  certain 
territory  by  the  name  of  Nova  Scotia.  It  has  also  been  used  in  order 
to  show  that,  from  the  time  when  it  was  first  mentioned  in  a  British 
public  act,  the  River  St.  Croix  was  designated  as  having  its  mouth  in 
the  Bay  of  Fundy. 

In  their  recapitulation,  the  commissioners  attach  great  importance 
to  what  they  call  their  discovery.     They  say : 

"  XIV.  We  have  discovered  by  a  critical  examination  of  the  Grant 
of  Nova  Scotia  1621,  in  the  original  Latin,  that  the  passage  which  de- 
scribes the  western  boundary  of  the  territory  included  in  that  grant,  an<I 


M 


{) 


'I 


144 


Report  of  Messrs. 


which  boundary  was  agreed,  at  the  time  of  the  treaty  of  17S3,  to  be  the 
easteru  boundary  of  Massachusetts  in  conformity  with  the  provision 
contained  in  the  charter  of  Massachusetts  of  1691,  is  susceptible  of  a 
new  interpretation,  varying  in  important  particulars  from  the  received 
one :  and  we  show  by  a  literal  translation  of  the  Latin,  that  the  bounda- 
ry was  intended  to  ruajrom  the  most  ivestern  waters  oj  the  St.  Croix  to 
the  sources  of  the  Chandiere  ;  a  Hue,  which  it  has  been  seen,  coincides 
in  a  very  striking  mi  nner  with  the  boundary  in  the  Sieur  de  Monts' 
grant  of  1603." 

Now,  so  far  as  relates  to  any  originality  in  the  argument  of  the  com- 
missioners and  in  the  conclusions  they  draw  from  their  discovery ;  it 
appears  to  me  that  the  whole  is  comprehended  in  the  following  passage 
of  the  second  statement  laid  before  the  King  of  the  Netherlands  on  the 
part  of  Great  Britain. 

"Sir  William  Alexander's  grant,  which  was  not  in  the  recollection 
either  of  Mr.  Adams  or  Mr.  Jay,  when  they  were  examined  on  oath  as 
witnesses  under  the  St.  Croix  commission,  and  which,  in  former  dis- 
cussions respecting  boundary  under  the  treaty  of  1783,  the  United  States 
agents  have  vehemently  rejected,  carries  the  western  boundary  of  Nova 
Scotia  up  to  the  westernmost  source  of  St.  Croix  River,  and  thence  to 
the  River  St.  Lawrence  by  a  line  extending  towards  the  north,  and  join- 
ing the  nearest  spring  or  head  stream  emptying  into  that  river.  Ac- 
cording to  the  same  grant,  the  northern  boundary  of  Nova  Scotia  was 
to  pass  along  the  southern  coast  of  the  River  St.  Lawrence  to  Cape 
Rosiers." 

"  The  terms  of  the  Grant  would  not  bear  us  out  in  supposing  that  the 
western  Boundary  of  Nova  Scotia  was  to  be  formed  by  a  due  north  line. 
The  only  positive  circumstances  to  be  collected  from  them  as  guides  for 
our  opinion,  are,  that  the  Line  between  the  two  sources  specified  therein 
shall  be  a  straight  one,  and  that  the  source  communicating  with  the  St. 
Lawrence  shall  be  the  nearest.  On  looking  to  the  map,  we  instantly 
perceive  tliat  these  guides  might  lead  us  to  head  waters  of  the  River 
Chandiere,  as  being  the  nearest  to  the  point  of  departure  of  all  the 
sources  north  of  it  falling  into  the  St.  Lawrence.  But,  without  presum- 
ing to  intimate  that  such  was  the  real  intention  of  the  Grant,  (/)  dat- 
ing, as  it  does,  from  a  period  when  the  face  of  the  country  was  wholly 
unknown,  we  feel  ourselves  justified  in  pointing  out  the  vagueness  of 
its  terms,  as  fairly  acknowledged  in  the  American  Statement,  and  infer- 
ring how  extremely  difficult,  or  rather  impossible,  it  would  have  been  for 
the  Negotiators  of  the  Treaty  to  have  fixed  the  Boundaries  between  two 


(/)  The  respectable  author  of  that  Statement,  sensible  that  such  a  line  would  be 
towards  the  west  and  not  towards  the  north,  could  not  insist  on  that  construction. 


Feathetsilonhaugh  and  Mudge. 


146 


Lid  be 
lion. 


Independent  States,  in  conformity  with  definitions  so  loosely  worded  as 
to  involve  the  niost  unexpected  contingencies." 

'<A  line  extending  from  the  source  of  the  St.  Croix  ''towards  the 
north"  to  the  nearest  part  of  the  St.  Lawrence  would,  at  all  events,  strike 
that  river,  owing  to  the  obliquity  of  its  course,  far  to  the  west  of  that 
point  where  a  due  north  line  would  intersect  it.  A  reference  to  the  map 
will  make  this  clear.  It  must  not  be  forgotten  that  the  Commissioners 
under  the  5th  Article  of  the  Treaty  of  1794,  in  deciding  which  was  the 
true  St.  Croix,  adopted  the  northern  stream,  to  the  exclusion  of  the  west- 
ern. Thus  the  variations  of  this  one  Grant  alone  offer  four  several 
north-west  angles  of  Nova  Sootia.  The  western  stream  being  the  one 
named  in  Sir  William  Alexander's  Grant,  the  preference  of  the  northern 
stream  must  surely  invalidate  the  authority  of  the  Grant  as  a  binding 
designation  of  the  boundary  of  Nova  Scotia  ;  and  at  any  period  subse- 
quent to  the  Proclamation  of  1763,  Sir  William  Alexander's  Grant  is 
altogether  irrelevant  as  to  the  northern  boundary  of  that  province." 

If  I  am  not  much  mistaken,  the  only  original  discovery  of  the  report 
on  that  subject  consists  of  the  insei.ion  of  the  Comma.  But,  admitting 
that  the  Crown  had  the  right  to  determine  the  course  of  the  line  from 
the  source  of  th»  St.  Croix  to  the  St.  Lawrence,  it  had  never  been  done 
or  suggested  prior  to  the  year  1763.  On  the  contrary,  in  the  only  map 
that  had  an  official  character,  (the  map  of  Mitchell  of  1755  sanctioned  by 
the  Board  of  Trade,)  the  line  is  made  to  run  due  north,  and  that  not  for 
the  purpose  of  simply  going  farther  north  than  the  sources  of  the  Penob- 
scot ;  for  the  line  is  extended  to  the  banks  of  (he  St.  Lawrence.  At 
last,  in  1763,  the  line  was  expressly  prescribed  by  the  public  Acts  of 
Great  Britain  to  be  a  due  north  line ;  and  thus  matters  stood  at  the  date 
oftheTreaty  of  17S3. 

It  was  deemed  important  on  the  part  of  the  United  States  to  prove  the 
identity  of  the  boundary  line  prescribed  by  the  Treaty  of  1783,  with  that 
which  had  been  designated  by  the  proclamation  of  1763,  and  the  other 
previous  public  acts  of  Great  Britain  :  and  it  was  of  course  necessary 
for  them  to  demonstrate  the  identity  of  both  with  that  which  they  claimed 
under  the  treaty.  The  third  and  fourth  sections  of  the  first  American 
,  Statement  of  the  case,  laid  before  the  King  of  the  Netherlands,  were  de- 
voted to  that  double  object.  In  the  second  section,  the  greater  part  of 
which  has  been  transferred  to  the  introduction  of  the  preceding  essay, 
the  chain  of  titles  and  the  claim  of  Massachusetts,  as  it  stood  in  17S2, 
were  examined.  Always  admitting  that  the  boundaries,  whether  contain- 
ing more  or  less  than  that  claim,  were  definitively  settled  by  the  Treaty 
of  1783 ;  it  has  been  urged  that  the  boundaries  of  Massachusetts,  as 
described  in  the  Charter  and  rendered  definite  in  1763  by  the  proclama- 
tion and  other  public  Acts  of  Great  Britain,  were  discussed  at  large  in 

13 


■« ;.    I  '■ 


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m 


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rji! 


146 


Report  ofMesn's. 


the  course  ofthe  Negotiations  of  I7n2,  and  had  a  considerable  influenc« 
on  the  final  agreement  with  respect  to  that  portion  ofthe  boundary. 

It  is  not  intended  to  pursue  the  critical  examination  of  all  the  other 
irrelevant  or  unimportant  parts  of  the  report,  and  to  enter  further  into 
minutite,  which  divert  the  attention  from  the  true  questions  at  issue  be- 
tween the  two  governments.  Notice  will  only  be  taken  of  that  which 
appears  new,  or  has  not  already  been  refuted  in  the  preceding  pages. 

It  had  been  heretofore  contended  on  the  part  of  Great  Britain,  that  the 
boundary  described  in  the  Treaty  of  1783,  was  identic  with,  and  sug- 
gested by  the  height  of  land  mentioned  by  Pownull,  as  that  in  which 
the  Kennebec,  the  Penobscot,  and  the  St.  Croix  had  their  sources. 
The  same  assertion  is  repeated  in  the  report,  and  the  same  reasons  as- 
signed for  it.  But  the  former  agents  of  the  British  Government  had 
denied  the  identity  of  the  treaty  boundary  with  that  designated  by  the 
Proclamation  of  1763.  That  identity  is  now  admitted  in  the  report :  and 
a  curious  and  novel  inference  is  drawn,  viz  :  that  the  description  of  the 
southern  boundary  of  the  Province  of  Quebec  in  the  Koyal  Proclamation 
of  1763,  was  derived  from  the  information  in  the  map  published  by 
Evans  in  1755,  although  the  eastern  portion  of  that  map,  as  re-publish- 
ed by  Pownall  in  1776,  belongs  to  him  and  not  to  Evans  ;  and  that  the 
descriptions  contained  in  the  Proclamation  of  1763  are  a  mere  echo  of 
the  information  produced  by  the  explorations  of  Governor  Pownall ; 
which  information  was  for  the  first  time  published,  together  with  his 
map,  in  the  year  1776  by  Governor  Pownall.  This  anticipating  echo 
ie  all  that  belongs  exclusively  to  the  report. 

A  double  transcript  of  Mitchell's  Map  is  appended  to  the  report ;  one 
of  which  is  called  Mitchell's  Map,  but  accurately  adjusted  for  latitude 
and  longitude :  in  other  words,  it  is  a  new  map  entirely  differing  from 
that  of  Mitchell.  The  western  source  of  the  St.  John  was  known  to 
Mitchell,  and  was  found  on  his  map  :  he  had  no  knowledge  ofthe  source 
ofthe  south  branch  of  that  river,  and  accordingly  it  is  omitted  on  his  map. 
In  the  transcript  adjusted  for  latitude  and  longitude,  the  alteration  consists 
simply  in  having  converted  Mitchell's  western  into  the  southern  branch  of 
the  St.  John.  The  result  is  simply,  that  a  line  drawn  from  the  extremity 
of  Bay  Chaleurs,  to  the  westernmost  source  of  the  St.  John  passes  north, 
and  that  if  drawn  to  its  most  southern  source,  it  passes  south  ofthe  River 
St.  John.  This  might  have  been  shown  by  looking  at  any  modern  map 
ofthe  coantry.  I  do  not  understand  what  inference  can  be  drawn  from 
that  fact,  nor  why  in  order  to  prove  it,  it  was  necessary  to  alter  Mitchell's 
Map.  But  when  the  commissioners  who  appealed  to  Coronelli  in  or- 
der to  prove  the  extent  of  geographical  knowledge  in  1689,  repudiate 
Mitchell's  Map,  they  forget  that  this  has  been  adduced  for  the  purpose  of 
showing  the  knowledge  which  the  negotiators  who  had  that  map  before 


Featherstonhaugh  and  Mudge. 


147 


them,  during  the  whole  course  of  their  negotiatious,  had  of  the  topogram 
phy  of  the  country. 

The  assertion  that  although  the  north-west  angle  of  Nova  Scotia, 
placed  at  the  source  of  the  River  St.  John  in  the  rejected  article  first 
proposed  by  the  American  Negotiators,  was  by  the  Treaty  removed  120 
miles  west  of  that  source,  yet,  the  Highlands  contemplated  in  the  reject- 
ed article  and  those  described  in  the  Treaty  are  the  same,  is  again  re< 
asserted  in  the  report  without  assigning  any  new  reavona  for  it.  The 
same  may  be  affirmed  of  all  that  relates  to  the  Negotiations  of  1782,  to 
the  opinions  expressed  by  Mr.  Sullivan,  Mr.  Mauduit,  and  others,  and 
to  all  the  residue  of  the  first  part  of  the  report;  with  the  exception  of  the 
proposal  to  annul  a  decision  made  in  conformity  with  a  solemn  treaty. 

There  is,  however,  a  point  which  the  authors  of  both  the  British  State- 
ments and  the  late  Report  have  very  naturally  misunderstood,  inasmuch 
as  sufficient  evidence  had  not  been  adduced  in  that  'espect  on  the  part 
of  the  United  States.  The  contract  of  the  Slate  of  Massachusetts  in 
the  year  1792  with  Jackson  and  Flint,  had  been  deemed  sufficient  to  show 
in  what  manner  the  Treaty  was  understood  by  the  State  :  and  the  survey 
of  the  land  which  was  on  file  in  the  Surveyor  General's  Office  was  not 
produced.  It  was  infciied  uu  the  part  of  (ireat  Britain,  from  an  errone* 
ous  delineation  in  Greeuleaf 's  map  of  Maine,  that  the  Grant  did  not  ex- 
tend beyond  the  sources  of  the  Penobscot. 

The  plan  of  the  survey  may  at  any  time  hereafter  be  produced  by  the 
United  States.  It  was  executed  in  the  years  1793  and  1794,  and  con- 
tains 2,943,133  acres.  Its  eastern  boundary  extends  from  the  Scoodiac 
Lakes,  one  hundred  and  fifty-two  miles  magnetic  north,  crossing  the 
St.  John  above  its  junction  with  the  Madawaska,  and  extending  about 
fifteen  miles  beyond  it.  There  the  surveyors,  having  mistaken  tributary 
streams  of  tho  Madawaska  for  rivers  emptying  into  the  St.  Lawrence* 
turned  to  the  west  along  highlands  which,  owing  to  that  mistake,  they 
supposed  to  be  the  highlands  of  the  Treaty.  The  western  boundary  of 
the  tract  is,  from  its  northern  extremity  to  the  sources  of  the  Penobscot, 
for  83  miles  parallel  to  the  eastern  boundary,  crossing  the  St.  John,  the 
Aliguash,  and  the  Restook  near  its  source.  Farther  south  that  western 
boundary  is  parallel  to  the  eastern  branch  of  the  Penobscot,  and  termi< 
nates  at  the  Passadumkeg. 

A  ^Treat  portion  of  the  second  part  of  the  report  (page  42  to  52]  enters 
into  dttails  which  can  have  no  effect  whatever  on  the  true  construction 
of  the  treaty.  It  is  not  meant  to  say  that,  because  the  United  States  do 
not  consider  positive  elevation  and  mountainous  character  as  properties 
imposed  by  the  Treaty  on  the  highlands  dividing  certain  rivers,  Great 
Britain  has  not  the  right  to  ascertain  all  the  facts  in  that  respect,  and 
from  the  ascertained  facts  to  draw  every  legitimate  inferences  she  may 


!  i  ,| 

m 


i 


148 


Report  of  Mi  tart. 


deem  proper.  But  the  portion  of  the  report  alhidcd  to  does  not  in  that 
respect  dhow  any  thing  else  than  that  the  American  line,  at  least,  wa« 
but  very  partially  examined  by  the  Surveyors  appointed  under  the  treaty 
of  Ghent,  and  has  not  to  this  day  been  properly  surveyed.  The  height 
of  the  spot  claimed  by  the  United  States,  as  the  north  east  angle  of  their 
boundary,  had  been  deduced  from  the  estimates  of  Mr.  Bouchettc,  the 
principal  British  Surveyor;  and  since  these  have  been  found  to  be  erro- 
neous, it  is  probable  that  the  height  of  that  spot  may  not  much  exceed 
the  estimate  in  the  Report.  All  this,  however,  of  no  importance  in  the 
view  of  the  subject  taken  by  the  United  States,  remains  uncertain  ;  and 
the  facts  will  bo  ascertained  by  the  Surveys  which  have  now  been  under- 
taken on  th'^ir  part. 

The  report  dwells  on  some  controversies  which  took  place  under  the 
Ghent  Commission,  respecting  certain  conjectural  maps,  and  on  the 
opinions  and  acts  of  the  American  Commissioner  and  Agent,  which 
most-certainly  cannot  affect  any  question  at  issue. 

The  conjectures  of  the  Surveyors  who  made  the  first  explorations 
must  have  been  in  many  respects  erroneous ;  and,  during  the  prelimi- 
nary proceeding  of  the  Ghent  Commission,  the  Agent  of  the  United 
States  may  have  believed  that  those  conjectures  would  be  corroborated 
by  further  investigation.  But,  from  the  time  when  the  treaty  was  con- 
cluded, and  before  the  nature  of  the  ground,  along  which  the  line  claimed 
by  the  United  States  does  extend,  had  at  all  been  explored,  the  same  boun- 
dary has  at  all  times  been  claimed  by  them,  for  the  simple  reason  that,  ac- 
cording to  the  Treaty,  it  is  traced  by  nature,  is  immoveable,  ond  does 
not  in  the  slightest  degree  depend  on  the  nature  of  the  ground.  It  is  true 
that,  if,  at  the  same  time,  that  ground  had  been  found  to  correspond  with 
the  character  arbitrarily  required  of  it  on  the  part  of  Great  Britain,  the 
objection  itself  could  not  have  been  made:  and  Surveyors  on  both  sides, 
then  and  now,  may  have  been  anxious  to  find  the  facts  to  correspond 
with  their  wishes.  But  from  the  moment  when  the  discussion  took 
place,  from  his  very  first  opening  argument,  the  Agent  of  the  United 
States  was  too  wise  to  rely  on  such  frail  foundation,  and  rested  the  claim 
of  the  United  States  on  its  true  and  inexpugnable  principle,  the  division 
of  the  rivers  specified  by  the  Treaty.  From  that  principle,  neither  he, 
nor  the  Commissioner  of  the  United  States,  nor  their  agents  at  a  sub- 
sequent time,  nor  the  State  of  Maine  in  its  legislative  reports,  nor  the 
committees  of  Congress  which  have  taken  cognizance  of  the  subject, 
have  ever  departed.  It  has  been  quite  otherwise,  on  the  part  of  those 
who,  divesting  the  highlands  of  the  expre$>s  and  indispensable  property 
of  dividing  certain  rivers,  have  substituted  for  those  Highlands,  arbitra- 
ry lines,  chains  of  mountains  and  imaginative  axis  of  elevation,  all 
which  have  the  singular  advantage  of  being  moveable  at  will.    The 


Featheratonhaugh  and  Mudge. 


149 


s  con- 
aitned 
boun- 
ot,  ac- 
does 
is  true 
d  with 
in, the 
sides, 
ispond 
took 
nited 
claim 
vision 
er  he, 
a  sub- 
or  the 
bject, 
those 
operty 
rbitra- 
n,  all 
The 


principle  on  which  the  right  of  the  United  States  does  rest  is  so  clear 
and  so  obvious,  that  aH  those,  who  have  been  engaged  on  their  part, 
have  used  the  same  fundamental  arguments.  I  am  bound  to  say  that, 
when  employed  as  one  of  those  agents,  I  found  i\\\  :hose  arguments  al- 
ready stated  by  Mr.  Kiadley,  the  agent,  and,  in  hin  opinion  of  the  case, 
by  Mr.  Van  Ness,  the  commissioner  of  the  United  States  under  the 
Ghent  commission  ;  and  that,  jointly  with  my  associate,  Mr.  Preble,  wa 
were  uhle  to  add  but  little,  and  that  principally  for  the  purpose  of  refu- 
ting, perhaps  at  greater  length  than  the  occasion  required,  the  various 
and  varying  objections  raised  by  the  British  agents. 

The  commissioner  on  the  part  of  the  United  States  was  of  opinion 
that,  with  respect  to  two  conflicting  and  partly  conjectural  maps,  both 
should  be  either  admitted  or  rejected.  The  British  Commissioner  want- 
ed the  British  nap  to  be  admitted  and  the  American  map  to  be  rejected. 
The  propofnl  to  examine  the  surveyors  under  oath  was  very  properly  dis- 
missed ;  it  could  have  added  nothing  to  what  was  already  known. 
Neither  Mr.  Odell  or  Mr.  Johnson  could  or  would  have  sworn  a  single 
iota  beyond  the  facts,  viz  :  that,  from  certain  spots  they  had  taken  views 
of  the  surrounding  country,  and  that  they  did  believe  that,  as  far  as  could 
be  ascertained  from  such  data,  their  plans  exhibited  a  correct  view  of 
tlie  ground. 

It  is  said,  that  one  of  those  conjectural  maps  had,  on  the  part  of  the 
United  .States,  been  accidentally  put  on  the  files  of  the  proceedings  of 
the  Board.  Tt  n  ill  not  be  asserted  that,  either  Mr.  Commissioner  Van 
Ness,  or  the  agents  who  prepared  the  statements  laid  before  the  King 
of  the  Netherlands,  rested  in  any  degree  their  respective  opinion  and 
arguments  on  that  map.  But  I  will  add,  that  there  was  in  fact  on  the 
files  of  the  Board  a  map  of  the  same  character,  on  the  part  of  Great 
Britain.  That  map  unites  Mr.  OdelPs  survey  of  the  Restook  and  the 
sketch  of  the  country  as  viewed  from  Mars  Hill  and  Houltun  plantation, 
with  Mr.  Campbell's  sketch  of  his  ''eight  of  land. 

A  reduced  map  of  this  will  be  found  on  the  same  plate  with  the  map 
reduced  from  that  of  the  late  British  Commissioners.  And  that  map  is 
introduced,  in  order  to  show  the  extent  of  the  discoveries  of  the  Com- 
missioners. They  have  the  merit  of  having  ascended  the  Restook  high- 
er than  Mr.  Odell,  and  of  having  penetrated  to  the  sources  of  that  river, 
thence  to  those  of  the  Atiguash  and  of  the  Penobscot,  near  which  they 
met  the  eastern  extremity  of  the  ridge  explored  by  Mr.  Campbell,  and 
thence  to  the  sources  of  the  western  branch  of  the  St.  John  and  of  the 
Etchemin.  They  are  entitled  exclusively  to  the  credit  of  having  ascer- 
tained the  actual  elevation  of  various  spots  in  the  vicinity  of  their  lino 
of  exploration.  But  they  cannot  claim  to  have  discovered  a  new  line 
of  Highlands  :  they  have  only  ascertained  with  precision  the  elevation 

13* 


ij     ;  ■ 

!1 


:l 


*i 


m 


IJ: 


160 


Report  of  Messrs. 


and  nature  of  the  ground,  erroneously  claimed  by  Great  Britain  as  the 
treaty  l)Oundary ;  but  the  position  of  the  Highlands  thus  claimed  had 
been  discovered,  and  was  fully  indicated  by  the  former  explorations  of 
the  two  British  surveyors,  ^h.  Odell  ard  Mr.  Campbell. 

I  pass  with  pleasure  to  the  appendix  of  the  report  which  presents  a 
most  striking  contrast  with  the  report  itself.  This  appendix  is  a  plain 
statemenl,  written  with  equal  simplicity  and  perspicuity  of  the  instru- 
ments used,  of  aM  the  precautions  taken  in  order  to  secure  a  true  result, 
of  the  barometric  observations,  of  the  line  of  exploration  andof  thediffi. 
culties  xvhich  the  commissioners  had  to  encounter.  It  is  astonishing 
that  they  should  have  performed  so  much  and  so  well  in  so  short  a  time. 
I  am  sure  that  all  the  observations  were  made  conscientiously  and  with 
all  the  skill  which  may  be  expected  from  the  present  state  of  science  ; 
and  I  place  entire  confidence  in  the  estimate  of  all  the  elevations  de- 
ductd  from  those  observations  on  which  they  rely  themselves.  No  as- 
tronomical observations  are  mentioned;  nor  is  any  statement  given 
either  of  the  data  by  which  the  distances  and  courses  were  estimated, 
nor  of  the  elements  on  which  the  section  of  the  line  between  the  points 
actually  observed  is  founded. 

The  United  Slates  attach  no  importance  to  those  facts  ;  but  if  they 
are  deemed  of  any  importance,  it  seems  to  me  that  all  the  surveys  on 
both  lines  ought  to  be  made  jointly  and  not  separately.  The  object  is 
that  all  the  facts  thought  important  by  either  party,  and  which  may  be 
ascertained,  should  be  so  ascertained  as  that  there  should  be  thereafter 
no  discussion  about  those  fact?,  and  that,  whether  in  a  direct  negotia- 
tion between  the  parties,  or  still  mora  so  if  the  subject  should  be  sub- 
mitted to  an  arbiter,  that  discussion  should  be  confined  exclusively  to 
the  inferences  which  may  be  drawn  from  facts  mutually  agreed  on. 

The  first  and  latter  portions  of  the  second  part  of  the  report  (pages 
37  to  42  and  51  to  57)  are  a  commentary  on  the  appendix  :  I  might  in- 
deed say  that  the  appendix  is  the  report,  and  that  what  is  called  the  re- 
port is  the  commentary. 

In  this,  the  commissioners  generalize  much  beyond  the  limits  of 
their  exploration,  and  state  their  theory.  Without  a  knowledge  of  the 
information  on  which  they  relied  for  that  which  did  not  fall  under  their 
own  observation,  it  can  neither  be  admitted  or  denied. 

They  admit  that  there  are  various  lines  of  what  have  once  been  con- 
tinuous ridges,  leaving  only  peaks  at  great  distances  from  each  other : 
they  speak  of  one  within  the  acknowledged  boundaries  of  the  United 
States  extending  from  the  Bald  Mountains  to  the  Katahdin,  and  which 
they  say  is  connected  with  Mars  Hill.  Many  others  might  probably  be 
found  in  a  country,  which  from  the  White  Hills,  the  highest  elevation 
east  of  the  Rocky  Mountains,  to  Bay  Chaleurs  and  Cape  Rosiers,  is 


a 
z 
A 
ti 
t( 
L 
o 


Feather atonhaugh  and  Mudge. 


161 


eu  con- 
other  : 
United 
d  which 
bably  be 
ilev&tion 
)siers,  ia 


traversed  by  various  groups  of  mountains  without  any  apparent  regu- 
larity. But,  according  to  the  theory,  there  are  but  two  that  should  be 
taken  into  consideration. 

The  commissioners  say  that  the  Green  Mountains,  which  run  from 
south  to  nnrth  between  the  River  Hudson  and  the  Connecticut,  divide 
themselves  into  two  branches  on  reaching  the  44th  degree  of  north  lati- 
tude ;  that  the  southern  branch  holding  its  course  north-easterly  sepa- 
rated the  head  streams  of  the  River  Chandiere  from  those  of  the  Con- 
necticut, of  the  Kennebec,  and  of  the  western  branches  of  the  Penob- 
scot ;  that  this  is  the  ridge  described. by  Pownall,  and  designated  in  the 
proclamation  of  1763  ;  that  further  to  the  east,  its  continuity  becomes 
more  interrupted,  but  that  though  with  less  elevation  it  still  continues  to 
form  a  part  of  what  they  call  the  axis  of  maximum  elevation ;  and 
that,  from  Nictor  liake  situated  about  fifty-six  miles  from  Bay  Chaieurs, 
the  same  continued  ridge  again  cises  in  its  direction  towards  thai  bay  to 
the  height  of  two  thousand  feet.     And  they  conclude  by  saying  : 

"  We  therefore  present  this  axis  ot  maximum  elevation  of  the  whole 
country  as  the  true  Highlands  intended  by  the  2nd.  article  of  the  treaty 
of  17S3,  uniting  to  the  character  of  «  Highlands,"  as  contradistinguished 
from  lowlands,  the  condition  required  by  the  treaty,  of  dividing  the  "  riv- 
ers that  empty  themselves  into  the  St.  Lawrence  from  those  which  flow 
into  the  Atlantic  Ocean,  to  the  north-westernmost  head  of  Connecticut 
River." 

Those  true  highlands  which,  it  is  asserted,  divide  the  rivers  that 
empty  tb'omselves  into  the  St.  Lawrence  from  those  which  flow  into 
the  Atla  ic  Ocean,  do  not,  for  more  than  two  hundred  miles  in  a 
straight  iine,  divide  the  tributary  streams  of  the  St.  Lawrence  from  any 
river  whatever  :  the  sources  of  those  tributary  streams  do  not  from  the 
source  of  the  Chandiere,  for  the  whole  of  that  diistance  touch  those  true 
dividing  highlands  in  their  north-eastwardly  course,  and  do  not  approach 
them  nearer  than  one  hundred  miles  for  a  considerable  portion  of  the 
line  of  those  highlands  :  and  those  true  highlands,  which  fujfil  the  con- 
ditions required  by  the  Treaty,  of  dividing  the  waters  of  the  River  St. 
Lawrence  from  the  Atlantic  Rivers,  do  not  divide,  intersect,  or  touch  any 
other  rivers  than  the  St.  John,  and  the  tributary  streams  of  that  river,  or 
of  those  which  fall  into  the  Bay  Chaieurs  :  to  which  m  st  be  added,  that 
according  to  the  British  construction  of  the  Treaty,  neither  the  St.  John, 
nor  the  rivers  that  empty  themselves  into  the  Bay  Chaieurs,  fall  into  the 
Atlantic  Ocean  ;  so  that  those  true  dividing  highlands  fulfil  the  condi- 
tions imposed  on  them  by  the  Treaty,  by  dividing,  intersecting,  or 
touching  no  other  rivers  but  such  as  fall  neither  into  the  River  St. 
Lawrence,  nor,  according  to  the  British  pretensions,  with  the  exception 
of  some  branches  of  the  Penobscot,  into  the  Atlantic  Ocean. 


II 


m 


m 


/ 


ij 


152 


Report  of  JMesars. 


To  this  assertion  of  the  commissioners  it  is  not  intended  here  to  ob- 
ject. It  is  only,  and  without  adducing  any  proof  in  support  of  it,  the 
repetition  of  that  which  has  been  asserted  on  the  part  of  Great  Britain. 
It  has  already  been  stated  at  the  beginning  of  these  observations,  that  the 
commissioners  did  not  pretend  to  argue  any  of  the  great  questions  at 
issue,  but  took  for  granted,  that  all  the  assertions,  however  extraordi- 
nary they  might  be,  which  had  been  made  on  the  part  of  Great  Britain, 
had  already  been  also  demonstrated. 

it  may,  however,  be  observed,  that  the  commissioners  have  contrived, 
which  was  really  difficult,  to  make  the  British  claim  still  more  untenable 
than  as  before  contended  for.  Their  line  differs  but  little  from  that 
traced  in  1S27  on  the  Map  A,  by  the  British  Plenipotentiaries,  as  that 
claimed  as  her  boundary  on  the  part  of  Great  Britain.  It  commences 
on  the  due  north  line,  a  few  miles  north  of  Mars  Hill,  and,  without  re- 
garding the  division  of  the  sources  of  the  tributaries  of  the  St.  John, 
from  those  of  the  various  branches  of  the  Penobscot,  it  intersects 
obliquely  the  line  heretofore  contended  for,  and  meets  it  several  miles 
south  of  the  Metjarmette  Portage,  which  actually  divides  a  source  of  the 
Penobscot  from  the  source  of  a  tributary  of  the  Chandiere.  This  last 
alteration  was  made  from  love  for  mountains,  and  aversion  for  flat 
grounds  destitute  of  conspicuous  elevations.  In  so  doing,  the  commis- 
sioners have  included  within  their  line  even  some  of  the  head  waters  of 
the  Penobscot;  and  they  have  repudiated  several  miles  of  the  highlands 
acknowledged  by  both  parties,  and  which  actually  divide  the  waters  of 
the  St.  Lawrence  from  those  of  the  Penobscot 

According  to  the  theory,  the  northern  branch  of  the  Green  Mountains 
leaves  the  southern  branch  or  axis  of  elevation  just  described  in  about 
forty-four  degrees  north  latitude,  and  pursuing  a  more  northerly  course 
passes  to  the  north  of  Lake  St.  Francis,  and  crosses  the  Chandiere ; 
whence  it  may  be  said,  by  its  occasional  peaks,  to  hold  a  course  nearly 
parallel  to  the  River  St.  Lawrence  until  it  reaches  the  District  of  Gaspe. 
This  branch,  whether  imaginative  or  real,  is  described  by  the  commis- 
sioners, less  as  a  continuous  chain,  than  as  being  traced  by  isolated 
peaks  separated  by  wide  intervals  of  marshy  tabular  lands.  But  they 
say,  which  may  be  perfectly  true,  that  the  sources  of  several  tributaries 
of  the  St.  Lawrence,  particularly  the  Chandiere,  the  Rimousky  and  the 
Metis,  have  their  sources  many  miles  east  or  south-east  of  the  peaks 
which  form  a  part  of  that  apparent  continuous  chain.  Whence  they 
conclude  that  it  is  superfluous  to  add,  that  *'  the  American  highlands  are 
deficient  in  the  character  required  by  the  Treaty,  viz  :  of  dividing  the 
St.  Lawrence  from  the  Atlantic  Rivers." 

But  this  is  not  all.  That  northern  branch  of  mountains,  taking  a 
course  a  little  east  of  north,  leaves  the  north-westernmost  head  of  Con- 


Featherslonhatigh  and  J\ludge. 


168 


are 
the 

iga 
on- 


nectlcut  River  from  forty  to  fifty  miles  to  the  south  ;  a  circumstance  of 
itself  conclusive.  "  For  the  simple  fact  of  that  ridge  having  no  con- 
nection with  the  highlands  where  the  Connecticut  River  takes  its  rise^ 
and  of  it6  passing  at  a  distance  of  from  forty  to  fifty  miles  north  from 
the  source  of  that  river,  deprives  the  said  northern  branch  of  mountiiins 
of  all  reasonable  pretension  to  be  the  highlands  intended  by  the  Treaty 
of  1783."  All  which  may  be  very  true,  as  applied  to  the  northern  branch, 
whether  theoretical  or  real  thus  described  in  the  report. 

But  the  commissioners  in  their  recapitulation  (XIX.)  say ;  "we 
have  shown- that  the  line  of  highlands  claimed  by  the  United  States,  to 
be  the  highlands  of  the  Treaty  of  1783,  &c,,  passes  at  least  fifty  miles 
to  the  north  of  the  north-westernmost  head  of  Connecticut  River,  and 
therefore  could  not  by  any  reasoning  be  shown  to  be  the  'highlands* 
of  the  Treaty  of  1783  ;  those  highlands. being  required  by  that  Treaty  to 
go  to  the  north-westernmost  head  of  Connecticut  River." 

That  is  to  say  :  that  the  commissioners  having  discovered,  or  thinking 
that  they  have  discovered  a  branch  or  chain  of  mountains,  parallel  to  the 
River  St.  Lawrence,  which,  as  they  say  themselves,  intersects  several 
tributary  streams  of  that  river,  do  declare  by  their  own  will  and  authori- 
ty that,  that  north  branch  or  chain  is  the  "  hi^^hlands  "  claimed  by  the 
United  States.  In  vain  have  the  United  States  repeatedly  declared, 
that  they  were  bound  by  the  terms  of  the  Treaty,  that  their  boundary 
was  the  ground  which  actually  divided  the  sources  of  the  tributary 
streams  of  the  St.  Lawrence,  from  those  of  the  St.  John  and  other  At- 
lantic Rivers  ;  that  they  could  not  take  the  latitude  of  construction  as- 
sumed by  the  British  Agents,  and  claim  as  part  of  their  boundary  any 
mountains  or  peaks  which  were  not  on  the  dividing  ground.  The 
commissioaers  insist  that  their  own  northern  branch  or  chain  of  moun- 
tains, which  is  not  and  never  has  been  claimed  by  the  United  States  as 
their  J  boundary,  is  their  boundary.  And  in  as  much  as  the  said  real  or 
fictitious  northern  chain  does  not  fulfil  the  conditions  of  the  Treaty,  and 
passes  fifty  miles  north  of  the  sources  of  the  Connecticut,  they  conclude 
thai  the  line  actually  claimed  by  the  United  States,  is  fi[ly  miles  distant 
from  the  head  waters  of  the  Connecticut,  and  does  not  fulfil  the  condi- 
tions of  the  Treaty.  The  assertion  is  so  ludicrous  that  we  forget  its 
audacity. 

In  the  course  of  that  extraordinary  part  of  the  report,  this  passage  oc- 
curs :  "  in  point  of  fact,  no  rivers  are  divided  in  their  course,  at  any 
point  of  the  country,  along  the  line  thus  claimed  by  the  Americans,  as 
carrying  out  the  intentions  of  the  Treaty."  If  by  the  words  thus  claim- 
ed the  northern  branch  of  mountains  of  the  commissioners  is  meant, 
there  is  nothing  further  to  be  said  about  it.  But,  if  because  the  tribu- 
taries of  the  SU  Lawrence  and  those  of  the  St.  John  are  so  situated, 


Hi 


;% 


ill 

)  .'till 


1  S.'! 


154 


Report  of  Mesari. 


that  they  often  run  parallel  to  each  other,  so  that  the  source  of  the  stream 
that  falls  into  the  St,  Lawrence,  lies  south  of  the  source  of  the  correspond- 
ing tributary  stream  of  the  St.  John  ;  if  because,  in  the  language  of  the 
country,  those  respective  tributary  streams  interlock,  it  is  meant  to  say, 
that  the  dividing  line  is  impossible  ;  I  would  answer  that  the  United 
States  do  not  claim  for  their  boundary  in  that  quarter  a  straight  line,  but 
the  boundary  as  Nature  has  made  it,  and  with  all  its  sinuosities.  'J  his 
construction  is  not,  however,  ascribed  to  the  commissioners ;  though  it 
would  only  lead  to  the  annihilation  of  the  ground  which  divides  the 
rivers  ;  and  this  does  not  differ  niuch  from  the  assertion,  that  the  Treaty 
does  not  require  those  rivers  to  be  divided,  which  it  has  declared  must 
be  divided. 

There  is  a  circumstance  which  seems  to  have  embarrassed  the  com- 
missioners. Facts  are  generally  very  annoying  to  theorists  ;  but  they 
are  very  apt,  instead  of  correcting  their  theory  according  to  the  facts,  to 
adapt  the  facts  to  the  preconceived  theory ;  and  I  do  not  know  why  the 
commissioners  should  have  been  arrested  by  that  circumstance.  Their 
axis  of  maximum  elevation  is  broken  in  the  middle  by  the  River  3t. 
John.  Thence  to  the  sources  of  the  Restook  they  found  a  number  of 
elevations,  one  of  which  only  reaches  1000  feet,  and  the  other  vary  from 
625  to  880.  And  east  of  the  St.  John,  for  a  considerable  distance  be- 
tween it  and  the  vicinity  of  Nictor  Lake,  the  average  elevation  seems  to 
have  been  below  1000  feet.  There,  mountains  are  found  exceeding 
2000  feet ;  and  in  the  vicinity  of  the  sources  of  the  south  branch  of  the 
St.  John,  we  find  again  the  same  elevation.  The  portion  of  the  chasm 
lying  east  of  the  St.  John  doe?  not  seem  to  have  troubled  much  the 
commissioners  ;  and  the  United  States  care  about  neither.  But  before 
proceeding  any  farther,  an  observation  intrudes  itself,  which,  though  un- 
important in  the  view  taken  by  them  of  the  subject,  may  have  its  effect 
on  others. 

The  average  elevation  of  the  British  line  between  the  due  north  line 
and  the  sources  of  the  Aliguash  is  under  1000  feet.  The  commission- 
ers, in  passing  over  the  portage  between  the  head  of  the  Metawaquem  or 
west  branch  of  the  St.  John  and  the  River  Etchemin,  a  tributary  of  the 
St.  Lawrence,  did  not  take  the  elevation  of  that  portage  which  is  on  the 
boundary  claimed  by  the  United  States.  But  they  found  the  height  at 
the  forks  of  the  St.  John  and  Metawaquem  to  be  929  feet,  and  that  of 
Lake  Etchemin  to  be  943  feet.  And  as  the  portage  or  dividing  ground 
between  those  two  points  must  necessarily  be  more  elevated  than  the 
rivers,  the  sources  of  which  it  divides,  that  elevation  is  greater  than  that 
of  the  British  line  east  of  the  sources  of  the  Aliguash.  Since  therefore  the 
commissioners  do  reject  that  portage  as  not  fulfilling  the  conditions  of 
the  treaty,  it  is  clear  that  it  is  thus  rejected,  not  on  account  of  its  want- 


Featheratonhaugh  and  Mudge. 


160 


ing  the  requisite  positive  elevatiou,  but  solely  because  it  is  a  table  land 
destitute  in  its  vicinity  of  peaks  or  apparent  mountains. 

Now  it  cannot  be  denied,  that  the  word  "  Highlands,"  even  used 
alone  and  separated  from  its  ine<!parable  adjunct  in  the  treaty,  means 
nothing  more  or  less  than  lands  which  are  high,  or  which  have  a  suffi- 
cient  relative  elevation  ;  that  it  does  not  imply  a  mountainous  charac- 
ter in  the  sense  attached  to  that  word  by  the  British  agents,  and  that  if 
the  Negotiators  had  intended  to  impose  on  the  boundary  such  a  charac- 
ter, they  would  instead  of  the  word  '<  Highlands,"  have  used  that  of 
"Mountains,"  or  some  other  analogous  expression. 

To  return  to  the  axis  of  elevation  ;  the  commissioners  complain  that 
if  the  due  north  line  does  meet  their  axis  in  the  worst  part  of  its  break, 
it  is  because  that  line  was  drawn  from  the  source  of  the  Chepunaticook 
or  northern  branch  of  the  Scoodiac,  instead  of  being  run  from  the  wes- 
ternmost source  of  that  river.  And  they  say  that  if  this  should  be  ulti- 
mately assented  to,  it  will  lose  to  Great  Britain  more  than  1,000,000  of 
acres  of  land.  But  it  is  not  so  much  the  loss  of  the  land  which  they 
regret,  as  that  the  line,  if  drawn  from  the  westernmost  source  of  the 
Scoodiac,  would  have  struck  the  Highlands  claimed  by  G'-eat  Britain,  at 
a  point  perhaps  three  or  four  hundred  feet  higher,  and  having  more  the 
appearance  of  a  peak,  than  that  actually  intersected  by  the  existing  due 
north  line. 

And  for  that  miserable  reason,  on  account  of  a  fact  which  does  not  in 
any  way  affect  the  merits  of  any  question  at  issue  between  the  two  na. 
tions,  solely  because  under  the  influence  of  their  Mountain  Monoma- 
nia, those  gentlemen  deliberately  advise  the  British  Government,  to 
break  a  solemn  decision  made  in  perfect  conformity  with  the  provisions 
of  the  treaty  of  1794,  never  objected  to  on  the  part  of  Great  Britain,  and 
acquiesced  in  for  more  than  forty  years. 

On  so  serious  a  subject,  I  will  not  permit  myself  to  make  any  com- 
ments. I  can  but  express  my  deep  regret  that  such  suggestion  should 
be  found  in  a  document  laid  before  the  Parliament  of  Great  Britain,  and 
refer  the  reader  to  the  appended  extracts  t  f  the  report,  for  the  reasons 
adduced  in  support  of  that  most  extraordinary  proposal.  But  I  am 
bound  to  reinstate  the  facts,  and  to  do  justice  to  the  memory  of  a  re- 
spectable and  distinguished  'citizen,  who  displayed  on  that  occasion  a 
most  honorable  impartiality. 

By  the  treaty  of  J  794,  the  question,  what  river  was  truly  intended  un- 
der the  name  of  the  River  St.  Croix,  was  referred  to  the  final  decision 
of  three  commissioners,  one  to  be  named  by  each  of  the  contracting 
powers  respectively,  and  the  third  by  the  two  first  commissioners :  and 
if  they  could  not  agree,  each  was  to  propose  one  person,  and  of  the  two 
names  so  proposed,  one  should  be  chosen  by  lot.     The  said  commis- 


'11 


m 


M.y\ 


III 


u 


156 


Report  of  Messrs. 


sioners  were  authorized  to  decide  what  river,  from  its  mouth  to  its 
source,  was  the  River  St.  Croix  intended  by  the  treaty.  The  article 
concludes  in  the  following  words  :  '<  and  both  parties  agree  to  consider 
such  decision  a»  final  and  conclusive,  so  as  that  the  same  shall  never 
thereafter  be  called  into  question,  or  made  the  subject  of  dispute  or  dif- 
ferehce  between  them."  It  was  originally  provided  by  that  article, 
that  the  commissioners  should  particularize  the  latitude  {ind  longi- 
tude of  the  source  of  the  River  St.  Croix.  By  the  explanatory  article 
between  the  two  Powers  of  16th  March,  1798,  they  were  released  from 
that  obligation,  and  left  at  liberty  to  describe  the  said  river  in  such  other 
manner  as  they  might  judge  expedient,  which  description  should  be  con- 
sidered as  a  complete  execution  of  the  duty  required  of  them  :  and  it  was 
further  agreed  that  a  suitable  monument  should  be  erected  at  the  place 
ascertained  and  described  to  be  the  source  of  the  said  River  St.  Croix. 

The  three  commissioners  thus  appointed,  did  on  the  25th  of  October, 
1798,  unanimously  agree  in  deciding  that  the  true  River  St.  Croix  was 
that  which  has  its  mouth  in  Passamaquoddy  Bay  at  a  point  about  one 
mile  northward  from  the  northern  part  of  St.  Andrews  Island,  and  (after 
stating  the  latitude  and  longitude  of  that  point  and  describing  the  course 
of  the  river  upwa;rds)  its  source  to  be  the  source  of  the  northward  branch 
of  the  said  river,  which  said'  northward  branch  had  the  Indian  name  of 
Chepunaticook.  A  stake,  properly  marked,  placed  at  that  source,  and  a 
map  annexed,  are  referred  to  in  the  decision.  A  monument  has  since 
been  erected  at  the  said  source  :  and  the  River  St.  Croix  thus  described 
is  that  generally  known  by  its  Indian  name,  Scoodiac. 

The  main  subject  of  contention  was,  which  was  the  River  St.  Croix  con- 
templated by  the  treaty.  The  British  agent  demonstrated  beyond  contra- 
diction that  Boone  Island,  situated  a  few  miles  above  the  mouth  of  the  Scoo- 
diac, was  the  Island  of  St.  Croix,  so  called  by  De  Monts,  and  on  which  he 
had  a  temporary  settlement  in  1604 — 16U5,  and  the  same  which,  ai\er  its 
having  been  abandoned,  was  visited  in  1607  by  Lascarbot ;  and  also 
that  the  River  Scoodiac,  particularly  described  by  Champlain  who  ac" 
companied  De  Monts,  was  the  same  river  first  called  by  Champlain 
Etchemin  River  (g)  and  afterwards  St.  Croix.  The  American  agent 
contended  that  the  St.  Croix  of  the  treaty  was  the  Magaguadavic,  another 
large  river  which  has  also  its  mouth  in  Passamaquoddy  Bay  east  of  the 
Scoodiac;  first,  because,  of  the  two  rivers  delineated  in  Mitchell's  Map 
which  have  their  mouths  in  Passamaquoddy  Bay,  the  easternmost  is  that 


(g)  There  are  two  rivers  called  Etchemin  by  Champlain ;  one  is  the  Scoodiac; 
and  tlie  other,  either  theChandiere  or  the  stream  next  to  it  still  called  Etchemin.  The 
last  derived  undoubtedly  its  name  from  its  being  the  route  by  which  the  Etchemins, 
or  St.  John's  Indians,  travelled  towttrds  the  site  of  Cluebec. 


Fealherslonhaugh  and  Mudge, 


157 


con- 

intra- 

Icoo- 

Ichhe 

[er  its 

also 

io  ac- 

iplain 

jagent 

lother 

.f  the 

Map 
lis  that 


kodiac; 
L  The 
liemins, 


which  he  calls  St.  Croix  ;  secondly,  because,  according  to  Indian  tra- 
dition, the  Magaguadavic  was  the  St.  Croix. 

The  choice  by  lot  had  fallen  on  an  American  citizen,  and  Egbert 
Benson  of  New- York  was  the  third  commissioner.  He  decided  that  the 
Scoodiac  was  the  River  St.  Croix  contemplated  by  the  treaty ;  and  the 
two  other  commissioners  concurred  or  acquiesced  in  his  opinion.  His 
reasons  are  detailed  at  large  in  a  report  made  by  him  to  the  President 
of  the  United  States.  They  were  in  substance,  that  the  River  St. 
Croix  contemplated  by  the  treaty  was  undoubtedly  that  so  called,  in  the 
grant  to  Sir  \\  illiam  Alexander,  and  in  all  the  subsequent  acts  of  Great 
Britain ;  that  the  River  St.  Croix  intended  by  the  grant  of  1621  to  Alex- 
ander  could  not  possibly  have  been  any  other  than  that  mentioned  and 
described  by  Champlain  and  Lescarbot,  the  only  authors,  who,  prior  to 
1C21,  had  ever  mentioned  that  river ;  that  Mitchell,  in  a  map  made  under 
the  auspices  of  the  board  of  trade,  could  not  have  intended  any  other  St 
Croix  than  the  river  thus  recognized  by  British  public  acts  ;  and  that  his 
involuntary  error  in  mistaking  the  eastern  frr  the  western  river  could 
not  affect  the  terms  of  the  treaty.  Although  Massachusetts  had,  ever 
since  1764,  contended  for  the  Magaguadavic  as  being  the  true  St 
Croix,  not  a  voice  was  raised  in  America  against  the  decision. 

After  the  main  question  had  been  decided,  the  next  which  arose  was, 
what  was  the  source  of  the  River  St.  Croix ;  and  on  that  point  there 
were  three  opinions  which  have  been  stated  in  No.  I.  of  this  appendix. 
The  three  commissioners,  however,  acquiesced  in  that  of  Mr.  Benson, 
who  considered  the  source  of  the  Scoodiac  to  be  its  outlet  from  Lake 
Genesagurangtinnsis,  the  lowest  of  those  lakes  which  have  each  a  distinct 
Indian  name,  but  have  been  called  by  the  English  and  the  Americans 
'<  the  Scoodiac  Lakes."  A  decision  to  that  effect  was  actually  prepared 
by  the  commissioners,  and  is  on  file  amongst  their  ofRcial  proceedings. 

It  was  then,  and  not  till  then,  that  what  is  called  in  the  report  a  com- 
promise took  place  ;  and  it  had  no  connection  with  the  decision  res- 
pecting the  true  River  St  Croix,  concerning  which  Mr.  Benson  and  the 
British  Commissioner  had  always  perfectly  agreed.  It  was  then  that  the 
American  proposed  to  the  British  Agent,  that  they  should  unite  in  ask> 
ing  the  commissioners,  to  substitute  the  Cheputnatecook  and  its  source 
for  the  place  above  stated,  in  favor  of  which  the  commissioners  had  pre- 
pared their  decision.  This  appears  from  the  following  extract  from  the 
British  Agent's  application  to  the  Board. 

The  underwritten  agent  also  begs  leave  to  lay  before  the  Board,  an 
origiual  letter,  dated  Providence,  3.^d  of  October,  1798,  from  Robert 
Liston,  Esq.,  at  that  time  his  Majosty's  Minister  Plenipotentiary  to  the 
United  States,  whom  his  Majesty's  Agent  at  that  time  thought  it  his 
duty  to  consult,  before  he  could  feel  himself  authorized  to  assent  to  the 

14 


1^ 

m 

m 


i 


^■t 


m 


fill 

■ ) ! 


' 


Ilk 


158 


Report  of  Messrs. 


said  proposal  of  the  Agent  of  the  United  States  at  that  time,  to  rcconi- 
mend  to  the  said  commissioners  uu  Jer  the  fifth  Article  of  the  said  Treaty 
of  1794,  to  alter  their  decision,  as  afore3k:id,  respecting  the  source  of  the 
said  River  St.  Croix,  which  letter  was  addressed  to,  and  duly  received 
by,  the  said  Agent  of  his  Majesty  before  the  same  commissioners,  and 
is  in  the  words  and  figures  following,  viz :" 


«  Private." 


«  Providence,  23d  October,  1798." 


«  Sir : 

"  I  have  considered  with  attention  your  letter  of  this  day  ;  and  it  ap- 
pears to  me  evident  that  the  adoption  of  the  River  Chepntnatecook,  as  a 
part  of  the  boundary  between  his  Majesty's  American  Dominions  and  those 
of  the  United  States,  in  preference  to  a  line  drawn  from  the  easternmoiit 
point  of  the  Scoodiac  Lakes,  would  be  attended  with  considerable  advan* 
tage.  It  would  give  an  addition  of  territory  to  the  Province  of  New 
Brunswick,  together  with  a  greater  extent  of  navigation  en  St.  John's 
River ;  and  above  all,  a  larger  stretch  of  natural  frontier,  calculated  to 
prevent  future  difficulties  and  discussions  between  the  two  countries. 
If,  therefore,  by  assenting  to  the  proposal  of  the  American  Agent,  you 
can  bring  about  the  unanimous  concurrence  of  the  commissioners  in 
this  measure,  I  am  of  opinion  that  you  will  promote  his  Majesty's  real 
interests  ;  and  I  will  take  the  earliest  opportunity,  with  a  view  to  your 
justification,  of  expressing  these  my  sentiments  on  the  subject,  to  hU 
Majesty's  Secretary  of  State." 

1  have,  &c., 

Ward  Shipman,  Esq.  (Signed)         Robert  Liston." 

It  is  evident,  that  if  the  question  between  the  Scoodiac  and  the  Maga- 
guadavic,  so  much  more  important  than  any  of  the  considerations  alluded 
to  by  Mr.  Listen,  had  not  already  been  decided,  and  if,  as  most  erro. 
neously  stated  in  the  Report,  that  decision  had  depended  on,  or  had  in 
any  shape  been  connected  with  the  subordinate  question  respecting  the 
true  source  of  the  St.  Croix,  that  subject,  the  question  between  the 
Scoodiac  and  the  Magaguadavie,  to  which  Mr.  Liston  does  not  even 
allude,  would  have  been  mentioner!  by  him,  as  the  peremptory  reason 
why  the  proposal  respecting  the  source  of  the  river  should  be  ac- 
cepted. 

The  British  and  American  agents  were  in  fact  the  representatives  of 
their  respective  governments,  and  the  commissioners  were  the  judges. 
When  those  agents  acting  for  their  governments  agreed  on  the  alteration 
and  jointly  applied  for  it,  the  commissioners  as  judges  gave  it  their 
sanction  and  decided  accordingly. 

It  will  be  seen  by  the  map  that  a  due  north  line,  drawn  from  the  out- 


Featheratonhaugh  and  Mudge. 


169 


Ires  of 

Idges. 

lation 

their 

out- 


i 


let  of  the  Scoodiac  Lakes,  would  have  intersected  the  Chepunatocook 
Lakes  and  thrown  in  the  British  territories  the  small  tract  of  land  con- 
tained between  such  a  north  line  and  the  Chepunatecook.  There  were 
within  that  tract  several  American  grants  and  settlements ;  and  it  was 
in  order  that  the  existing  state  of  things  should  not  be  disturbed,  that 
the  American  agent  made  the  proposal.  It  was  gladly  accepted  by  the 
British  agent,  because  the  source  of  the  Chepunatecook  was  west  of  the 
place  fiist  agreed  to  by  the  commissioners,  and  that  therefore  Great 
Britain  would  by  the  alteration  gain  a  much  greater  territory  north  of 
the  waters  of  the  St.  Croix,  and  principally  because  the  due  north  line 
drawn  from  the  source  of  the  Chepunatecook  would  cross  the  River  St. 
John  higher  up  and  farther  west. 

Neither  the  opinion  of  the  Commissioners  of  the  propriety  of  the 
decision,  nor  mine,  are  of  any  inpottance.  But  since  they  have  given 
theirs,  I  may  be  permitted  to  say,  that  the  decision  appears  to  me  to 
have  been  correct  in  every  respect.  The  River  St.  Croix  is  designated 
in  the  Treaty  by  that  name  and  by  that  name  alone.  Having  ascertained 
which  was  the  river  thus  designated,  visited  and  described  by  Champlain 
from  its  mouth  to  the  head  of  tide  water  ;  and  the  words  the  source  hav- 
ing been  substituted  in  the  Treaty,  as  they  had  been  since  1763  in  all 
the  Public  British  Acts,  for  the  words  loesterninost  source  of  the  grant  of 
1621  to  Sir  William  Alexander  ;  the  Commissioners  had  nothing  else 
to  do,  than  to  decide  what  was  the  true  source  of  the  River  St.  Croix 
thus  recognized  as  being  from  its  mouth  to  the  head  of  tide  water,  the 
true  River  St.  Croix  contemplated  by  the  Treaty.  The  names  given 
by  the  Indians  to  the  several  streams  or  branches  of  that  river  were  not 
alluded  to  in  the  Treaty,  and  had  nothing  to  do  with  the  decision.  And 
it  will  appear  by  an  inspection  of  the  map,  that  the  northern  branch, 
which  the  Indians  thought  proper  to  designate  by  the  name  of  Cheputnate- 
cook,  is  of  all  the  branches  of  the  rivers  considerably  the  longest  and  the 
straightest,  and  that  therefore  its  source  must  be  considered  as  the  true 
source  of  the  whole  River,  (h) 

The  substance  of  the  whole  argumentative  part  of  the  report  has  now 
been  stated,  and  it  may  be  seen,  supposing  all  the  propositions  which  it 
contains  to  have  been  proved,  whether  they  can  in  any  degree  affect  the 
decision  of  the  true  questions  at  issue.  Even  supposing  the  line  of 
Highlands  explored  by  the  commissioners  to  be  what  they  call  the  axis 
of  maximum  elevation  of  the  whole  country  between  the  Connecticut 
and  the  Gulf  of  St.  Lawrence,  this  does  not  prove  that  that  axis,  which 


(A)  It  might  !iave  been,  added  that  in  the  dialect  of  the  Passamaquoddy  Indians, 
Scoodiac  dues  not  meau  lowland  but  burnt  land,  that  it  is  derived  from  scoot  fire  and 
acki  land. 


I-' 
i*.  I 


n>i 


■HI  I 


l«i<a)|IIKU«i'«iM 


160 


Report  of  Messrs. 


is  for  more  than  one  half  of  its  length  distant  more  than  one  hundred 
miles  from  the  sources  of  the  tributaries  of  the  River  St.  Lawrence, 
and  touches  those  sources  only  when  it  reachei?  the  Chandiere,  docs  ac 
tuplly  divide  the  rivers  that  empty  themselves  into  the  River  St.  Law- 
rence from  ny  other  rivers  whatever.  Though  it  should  be  proved,  that 
the  Highlands  claimed  by  the  United  States,  are  less  elevated  and  want 
the  mountainous  character  ascribed  to  the  British  line,  this  does  not 
prove  that  such  characte  and  a  greater  elevation  are  a  condition  im. 
posed  by  the  treaty  on  the  Highlands  therein  contemplated.  On  both 
those  subjects  the  report  is  altogether  silent ;  nor  does  it  discuss  the 
question  whether  the  St.  John  and  the  Ristigouche  are  or  are  not  under 
the  treaty  Atlantic  Rivers.  It  leaves  all  the  great  questions  at  issue 
>vhere  it  found  them :  indeed  it  has  in  one  respect  placed  the  British 
claim  on  even  worse  ground  than  that  heretofore  relied  upon. 

The  commissioners  say  that  the  former  British  agents  were  wrong  in 
denying  that  the  line  of  demarcation  established  by  the  ancient  provin- 
cial boundary,  was  intimately  connected  with  the  boundary  intended 
by  the  treaty  of  1783  :  and  they  affirm,  expressly,  that  the  boundary  de- 
scription, &c.  contained  in  the  Royal  Proclamation  of  1763,  in  the 
Quebec  Act  of  1774,  and  in  the  treaty  of  1783,  are  idei  1  with  each 
other. 

I  do  not  know  by  whom  the  British  statements  laid  before  the  King  of 
the  Netherlands  were  prepared  :  from  internal  evidence  it  might  be  in- 
ferred that  both  were  not  written  by  the  same  person.  But  whoever  may 
have  been  the  author  or  authors,  those  documents  are  respectable  papers, 
written  in  good  taste,  without  any  attempt  to  distort  or  misrepresent  the 
arguments  of  the  other  party  ;  and,  considered  as  what  they  purport  to 
be,  viz  :  pleadings  on  the  part  of  Great  Britain  before  the  arbiter,  they 
appear  to  me  to  contain  all  that  could  be  said  on  the  subject,  and  to  have 
no  other  deLits  but  those  inherent  to  the  very  bad  cause  which  they  had 
to  defend.  The  writers  understood  thoroughly  their  case,  and  saw  clear, 
ly  that,  if  they  admitted  that  identity  of  the  boundaries  described  in  the 
Proclamation  and  in  the  Treaty,  for  which  the  United  States  contended, 
the  question  was  given  up,  and  they  would  lose  the  only  faint  hope  of 
success  they  might  entertain. 

It  is  evident  that,  if  the  .substitution,  in  the  clause  of  the  treaty  which 
relates  to  the  division  of  rivers,  of  the  words  "Atlantic  Ocean"  in  lieu 
of  the  word  "Sea"  used  in  that  clause  of  the  proclamation  which  de- 
scribes the  southern  boundary  of  the  Province  of  Quebec,  has  produced 
such  an  effect  as  to  exclude  in  the  treaty  the  Ristigouche  and  the  St. 
John  from  the  class  of  rivers  intended  to  be  divided,  the  boundaries  de- 
scribed in  the  two  instruments  respectively  are  widely  different ;  and  this 


Fealherslonhaugh  and  Mudge. 


161 


vhich 

lieu 

de- 

[luced 

St. 

de- 

Ithis 


is  the  constriiotion  for  which  the  authors  of  the  British  statements  laid 
before  the  King  of  the  Netherlands  contended. 

It  is  equally  evident  that,  if  the  boundaries  described  in  the  two  in- 
struments are  identic,  as  maintained  by  the  United  States  and  by  the 
late  British  commissioners,  the  substitution  in  the  treaty  of  the  words 
"Atlantic  Ocean"  in  lieu  of  "Sea,"  has  made  no  alteration  in  the  boun- 
dary, and  that  those  words  "Sea"  and  "Atlantic  Ocean,"  respectively 
used  in  the  Proclamation  and  in  the  treaty,  must  he  taken  as  synonymous : 
and  in  that  case,  there  is  no  loncjer  room  for  the  objection  drawn  from 
the  Atlantic  Ocean  being  in  another  clause  of  the  treaty  contradistin- 
guished from  Bay  Fundy. 

Had  the  report  of  the  commissioners  been  laid  before  the  King  of  the 
Netherlands  instead  of  the  two  British  statements,  the  award  would  in- 
fallibly have  been  entirely  in  favor  of  the  American  line. 

The  British  construction  of  the  term  «  Highlands,"  and  along  with  it 
the  whole  theory  of  the  commissioners  were  set  aside  by  the  award  ; 
which  declares,  "  that  according  to  the  instances  alleged,  the  term 
*  Highlands'  applies  not  only  to  a  hilly  or  elevated  country,  but  also  to 
laud  which,  without  being  hilly,  divides  waters  flowing  in  difTerent  direc- 
tions ;  and  that  thus  the  character  more  or  less  hilly  and  elevated  country 
through  which  are  drawn  the  two  lines  respectively  claimed,  at  the  north, 
and  at  the  south  of  the  River  St.  John,  cannot  form  the  basis  of  a  choice 
between  them."  And  I  am  confident  that  such  also  will  be  the  opinion 
of  every  man  who  entertains  correct  notions  of  Physical  Geography. 

In  the  same  manner,  not  a  foot  of  the  line  claimed  by  Great  Britain 
was  confirmed  by  the  award  ;  and  the  whole  of  it  was  repudiated  by  the 
declaration  "  that  the  verb  '  to  divide '  appears  to  require  the  contiguity 
of  the  objects  to  be  'divided.'" 

It  is  manifest  that  the  doubts  in  his  mind,  which  Induced  the  King  to 
propose  what  appeared  to  him  an  equitable  division  of  the  disputed  terri- 
tory, arose  from  the  use  of  the  term  "  Atlantic  Ocean  "  in  the  clause  of 
the  treaty  that  relates  to  the  division  of  rivers,  combined  with  the  dis- 
tinction made  in  another  clause  between  that  Ocean  and  Bay  Fundy, 
&c.  ;  and  which  he  expressed  by  saying,  that  "  it  would  bo  hazardous 
to  include  the  Rivers  St.  John  and  Ristigouche  in  the  class  of  rivers  mil. 
ing  into  the  Atlantic  Ocean." 

That  objection  is  removed,  whenever  the  identity  between  the  boun- 
daries  respectively  established  by  the  Proclamation  and  the  treaty  is  ad- 
mitted, ^o  such  identity  had  been  admitted  in  the  British  statements  ; 
and  the  award  declares  that  "the  ancient  delimitation  of  the  British 
Provinces  does  not  aflford  the  basis  of  a  decision."  But  if,  as  tho 
United  States  contend  and  the  commissioners  affirm,  the  identity  had 
been  acknowledged  by  both  parties,  and  the  objection  respecting  the  in- 

14* 


111 


i. 


I 


fi' 

'A 


i 


ilr 


"^--^^"^■■^ 


102 


Report  of  Mea$ri, 


terpretation  of  the  terms  of  the  treaty  had  been  thus  removed,  the  de« 
cision  would  necessarily  have  been  in  favor  of  the  American  line.  For 
had  no  doubt  existed  respecting  the  terms  of  the  treaty,  the  King,  who 
is  an  accomplidhed  publicist,  would  not  have  resorted  to  the  presumed 
improbability  that  Great  }3ritain  could  have  agreed  to  the  boundary 
claimed  by  the  United  States,  or  to  any  other  presumed  ititentiovs  of  the 
parties,  in  order  <'to  interpret  what  had  no  need  of  interpretation." 
The  authors  of  the  statements  understood  the  British  case  better  than  the 
late  commissioners. 

There  is  a  passage  in  these  observations  which  is  not  perhaps  nuffi- 
ciently  explicit.  The  British  coniini8sioners  affirm,  "  that  the  height 
of  land  described  by  Evans  and  Pownall  in  1756,  extended  to  the  east- 
ern branches  of  the  Penobscot,"  and  "  that  the  description  of  the  south- 
ern boundary  of  the  Province  of  Quebec,  and  in  the  Royal  Proclamation 
of  1763,  was  derived  from  the  information  published  by  Evans,  the 
Highlands  there  spoken  of  being  identical  with  the  height  oj  land  laid 
down  in  Evans'  map." 

'I  hey  clearly  quote  Evans'  map  of  1765,  without  having  seen  it ; 
though  they  might  have  found  a  reprint  of  it  in  JefTery's  Atlas,  No.  18. 
It  is  entitled  "a  map  of  the  middle  British  Colonies  in  America,  viz  : 
Virginia.  Maryland,  Delaware,  Pennsylvania,  New  Jersey,  New-York, 
CoiMiecticut  and  Rhode  Island."  It  does  not  embrace  a  single  foot  of 
the  hei;;ht  of  land  in  qu<;stion,  and  does  not  approach  it.  The  Connec- 
ticut River  is  not  delineated  on  it  farther  north  than  a  few  miles  north 
of  the  43d  degree  of  latitude,  or  about  140  miles  south  of  the  sources  of 
that  river.  All  north  of  that  latitude  (43o  10')  and  east  of  the  Hudson 
and  of  Lake  Champlain  is  a  blank  on  that  map  ;  and  the  name,  "  height 
of  land"  is  no  where  used  in  it. 

But  the  commissioners  had  before  them  Pownall's  Map  first  published 
in  1776,  and  they  might  have  read  its  title,  in  which  New  England 
and  the  bordering  parts  of  Canada  are  expressly  stated  to  be  an  ad- 
dition to  Evans'  Map.  That  portion  of  Pownall's  Map,  added  by  him 
to  that  of  Evans,  is  that  which  embraces  the  height  of  land  in  question, 
viz :  from  the  sources  of  Connecticut  to  those  of  the  Chandiere  ;  and  a 
copy  of  that  portion  is  annexed  to  this  essay.  It  is  sufficiently  clear 
that  the  description  of  the  boundary  in  the  Proclamation  of  1763  could 
be  derived,  neither  from  the  previous  map  of  Evans  which  did  not  em- 
brace that  portion  of  the.country,  nor  from  Pownall's  Map  or  topographi- 
cal essay,  which  were  both  published  fjr  the  first  time  in  1776,  thirteen 
years  after  the  Proclamation.  As,  if  to  reach  the  climax  of  inconsisten- 
cy, it  had  been  stated  in  the  report,  (page  9)  that  the  former  British  and 
American  agents  had^"  both  placed  the  question  at  issue  upon  grounds 
dansrrous  to  their  respective  claims;"  because  it  was  not  known  to  them 


\ 


Fealherstonhaugh  and  Mudge. 


163 


♦» 


"that  a  ranp;e  of  Highlands  correspondiDg  with  the  terms  of  the  treaty 
existed  in  a  part  of  the  territory  which  neither  of  the  parties  had  exam> 
ined,  namely,  south  of  the  St.  John,  and  lying  in  that  oblique  direction 
between  the  sources  of  the  Chaudiere  and  the  Day  of  Chaleurs.  }low  far, 
that  discovery  duo  exclusively  to  the  commissioners,  may  be  said  to 
have  been  unknown  to  the  former  British  agents,  will  appear  by  the  red 
boundary  delineated  on  map  A,  and  by  the  map  reduced  from  the  sketch 
of  Messrs.  Odell  and  Campbell.  But  I  cannot  see  how  the  commis- 
sioners reconcile  that  assertion  of  the  total  iguorance,  before  they  dis- 
covered it,  of  the  said  range  of  Highlands,  either  with  the  early  know- 
ledge of  the  Indian  route  from  the  St.  Croix  to  Quebec,  mentioned  by 
Sir  William  Temple  in  166U,  and  evidently  referring  to  the  height  of 
land  (pages  21,  22)  or  with  their  attempt  to  show  that  those  Highlands 
which  they  have  discovered  are  the  same  which  were  described  by  Pow- 
nall,  in  the  Proclamation  of  1763,  and  in  the  treaty  of  1783. 

It  will  be  seen  that  Pownall's  Map  does  not  extend  to  the  sources  of 
the  Penobscot,  and  does  not  embrace  any  portion  of  the  two  conflicting 
lines  ;  and  it  appears  from  his  topographical  essay,  that  he  had  no  per- 
sonal knowledge  or  information  respecting  the  nature  of  the  ground  along 
which  either  of  those  lines  does  run.  When,  therefore,  he  designates 
by  the  name  of  "  height  of  land  "  the  ground  in  which  the  Kennebec, 
the  Penobscot,  and  the  St.  Croix  have  their  sources,  it  is  because,  with- 
out knowing  i'vi  nature,  he  knew  that  that  ground  divided  or  separated 
those  sources  from  those  of  the  St.  John,  and  because  the  term  «  height 
of  land,"  (as  well  as  the  synonymous  term  «  dividing  highlands")  means 
nothing  else  than  the  ground,  without  regard  to  its  character  or  elevation, 
in  which  rivers  flowing  in  different  directions  have  their  sources,  and 
which  thus  divides  those  rivers  from  each  other. 


No.  IV. 

Extracts  from  the  Report  of  Messrs.  Featherstonhaugh  and  Mudge. 
Charter  of  Massachusetts,  1691. 


By  this  document  the  territorial  rights  of  the  old  charter  granted  in 
1606  to  the  New  Plymouth  Company,  which  had  been  forfeited  were 
restored,  and  other  territories  annexed,  as  follows  : 

«  The  Colony  of  Massachusetts'  Bay  and  Colony  of  New  Plymouth, 
the  Province  of  Maine,  the  territory  called  Acadia,  or  Nova  Scotia,  and 


164 


Extracts  from  Report  of  Meatrs. 


W. 


ti-   : 


A  ■ 


all  that  tract  ofland  lying  between  the  said  territories  of  Nova  Scotia 
and  the  said  Province  of  Maine." 

The  tract  of  land  here  spoken  of,  and  which  had  been  called  Saga* 
dahoc,  had  been  granted  on  the  12th  of  March,  1664,  by  Charles  the 
Second  to  his  brother,  the  Duke  of  York,  and  in  that  grant  it  is  thusde> 
scribed : — 

"Beginning  at  a  certain  place  called  or  known  by  the  name  of  St. 
Croix,  next  adjoining  to  New  Scotland  in  America,  and  from  thence 
extending  along  the  sea-coast  unto  a  certain  place  called  Petuaguine  or 
Pemaquid,  and  so  up  the  river  thereof  to  the  farthest  head  of  same  as 
it  tendeth  northwards,  and  extending  from  thence  to  the  River  Kinebe- 
qui,  and  so  upwards  by  the  shortest  course  to  the  River  Canada  north- 
ward." 

The  charter  of  1691  also  contained  the  following  reservation  : — 

"  Provided  always  that  the  said  lands,  islands,  or  any  premises  by  the 
said  letters  patent,  intended  or  meant  to  be  granted,  were  not  then  ac- 
tually possessed  or  inhabited  by  any  other  Christian  Prince  or  State." 
(page  14.) 

But  the  royal  charter  of  1691,  even  if  it  had  not  been  annulled  in  re- 
lation to  Sagadahoc,  by  the  treaty  of  Ryswick,  furnishes  no  ground  for 
a  claim  on  the  part  of  Massachusetts  to  go  to  the  St.  Lawrence ;  the 
words  of  the  charter  are  simply  : — 

"Those  lands  and  hereditaments  lying  and  extending  between  the 
said  '  country  or  territory  of  Nova  Scotia  and  the  said  river  of  Sagada- 
hoc' The  furthest  point,  therefore,  to  which  this  north-tvestern  corner 
of  Sagadahoc  can  be  claimed,  is  ihe  source  of  the  river,  which  being  the 
Kennebec  River,  is  the  point  passed  by  the  Highlands  of  the  treaty  of 
1783,  in  north  latitude  46'=,  or  nearly  so.  This  charter,  then,  gives  no 
title  beyond  the  head  of  that  river."  (page  17.) 

By  the  charter  of  1691,  Massachusetts  was  forbid  to  issue  grants  in 
the  Sagadahoc  territory,  it  declared  them  "  not  to  be  of  any  force,  validity 
or  effect,  until  we,  our  heirs,  and  successors,  shall  have  signified  our  or 
their  approbation  of  the  same."  (page  18.) 

No  act  of  the  1  iitish  Government  in  relation  to  the  annexation  of  the 
Sagadahoc  territory  to  the  Colony  of  Massachusetts'  Bay,  gave  that 
colony  a  title  to  any  part  of  it  beyond  the  description  contained  in  the 
charter  of  William  and  Mary  (1691),  viz  :  "  all  those  lands  andheredita- 
ments  lying  and  extending  between  the  said  country  or  territory  of 
Nova  Scotia,  and  ihe  said  river  of  Sagadahoc  ;"  which  being  construed 
as  far  as  the  sources  of  the  Kennebec  River,  coincides  with  the  most 
southerly  source  of  the  River  Chandiere.  (page  18.) 


he 
a- 
of 

)St 


Feather stonhaugh  and  Miidgt. 
Grant  of  Nova  Scotia  to  Sir  W.  Alexander,  1621. 


165 


That  grant  is  described  in  the  following  terms : 

<<  Oinues  et  singulas  terras  Contiuentis,  ac  insulas  situatas  et  jacentes 
in  America  intra  caput  sen  promontoriiira  commnniter  Capde  Sable  ap- 
pellat.  Jacen.  prope  latitudinem  qtiadraginta  trium  graduum  aut  eo  circa 
ab  equinoctiali  linea  versus  Septentrionem,  a  quo  promontorio  versus 
littus  maris  tenden  ad  occidentem  ad  stationem  Sanotse  Marise  naviura 
vulgo  Sanctinareis  Bay.  Et  deinceps,  versus  Septentrionem  per  direc- 
tam  iineam  introitum  sive  ostium  magnsB  illius  stationis  navium  trajicien. 
qu£B  excurrit  in  terre  orientalem  plagam  inter  regiones  Suriquorum  et 
Etcheminorum  vulgo  Suriqtiois  et  Etchemines  ad  tluvium  vulgo  nomine 
SanctaB  Crucis  appellat.  Et  ad  scaturiginem  remoti.-si  nam  sive  fontem 
ex  occidentali  parte  ejusdem  qui  se  primum  prudicto  fluvio  immiscet. 
Unde  per  imaginariam  directam  Linearn  quae  pergere  per  terram  seu 
currere  versus  Septentrionem  concipietur  ad  proximam  navium  Statio- 
nem, fluvium  vel  Scaturiginem  in  magno  fluvio  de  Canada  sese  exone- 
rantem.  Et  ab  eo  pergendo  versus  orientem  per  maris  oris  littorales 
ejusdem  fluvii  de  Canada  ad  fluvium  stationem  navium  portuni  aut  littus 
communiter  nomine  de  Gathepe  vel  Gaspe  notum  et  appellatum." 

Of  this  passage,  we  submit  the  following  literal  translation  : — 

"  All  and  each  of  the  lands  of  the  continent,  and  the  islands  situated 
and  lying  in  America  within  the  headland  or  promontory,  commonly 
called  Cape  Sable,  lying  near  the  forty-third  degree  of  latitude  from  the 
equinoctial  line  or  thereabouts.  From  which  promontory  stretching 
westwardly,  towards  the  north,  by  the  sea  shore,  to  the  naval  station  of 
St.  Mary,  commonly  called  St.  Mary's  Bay.  From  thence,  passing  to- 
wards the  north  by  a  straight  line,  the  entrance  or  mouth  of  that  great 
navai  station  which  penetrates  the  interior  of  tll^  eastern  shore  betwixt 
the  countries  of  the  Souriquois  and  the  Etchemins,  to  the  river,  com- 
monly called  the  Sf.  Croix.  And  to  the  most  remote  source  or  spring 
of  the  same  on  the  western  side,  which  first  mingles  itself  with  the  afore- 
said river.  From  whence,  by  an  imaginary  straight  line,  which  may 
be  supposed  (concipietur)  to  advance  into  the  country,  or  to  run  towards 
the  north,  to  the  nearest  naval  station,  river,  or  spring,  discharging  it- 
self into  tho  great  River  of  Canada.  And  from  thence  advancing  to- 
wards the  East  by  tho  gulf  shores  of  the  said  River  of  Canada,  to  the 
river,  naval  station,  fort,  or  shore,  commonly  known  or  called  by  the 

name  of  Gathepo  or  Gaspe." 

.  The  direction  to  follow  the  St.  Croix  to  its  westernmost  sources  is 
consistent  with  the  very  precise  knowledge  we  now  possess  of  the 
branches  of  that  river.  On  the  other  hand,  this  direction  to  go  to  the 
westernmost  sources  of  the  St.  Croix  would  appear  to  bo  without  an  Qb< 


i 


166 


Extracts  from  Report  of  Messi'S. 


M 

I 

s 


ject,  unless  it  were  to  get  into  the  adjacent  waters  of  the  Penobscot ;  and 
is  it  reasonable  to  suppose  that  the  expression,  "  versus  Septentrionem 
ad  proximmn  navium  Stationem  fluvium  vel  scaturiginem  in  magna  fltivio 
de  Canada  sese  exonerantem,'^  could  mean  that  the  line  to  the  St.  Law- 
rence  from  the  sources  of  the  St.  Croix  should  be  a  due  north  line  ;  at 
a  time  when  no  information  existed  of  the  interior  of  the  country  to  be 
traversed  by  a  due  north  line  ;  and  when  it  was  not  known  whether  there 
was  a  river  or  a  naval  station  at  the  termination  of  that  line  ;  there  be- 
ing in  point  of  fact,  neither  the  one  nor  the  other?  Compelled,  there- 
fore, to  believe  that  a  line  drawn  due  north  from  the  sources  of  the  St. 
Croix  River  is  not  in  accordance  with  the  description  contained  in  the 
grant,  we  proceed  to  a  more  critical  examination  of  the  language  of  the 
grant. 

The  boundary  line  is  first  directed,  as  will  be  seen  by  reference  to 
the  map,  to  proceed  from  Cape  Sable  to  St.  Mary's  Bay  by  a  course  to. 
wards  the  north  (versus  Septentrionem.)     Now  this  course  is  laid  down 
in  the  oldest  maps,  and  is  rightly  so  laid  down  in  them,  nearly  north- 
west ;  verstis  Septentrionem  therefore  here  is  equivalent' to   north-west. 
This  is  a  fair  deduction  from  the  general  description  of  the  course, 
which  is  ;  "  versus  Septentrionem  a  quo  ''promontorio  versus  littvs  marit 
tenden  ad  occidentem,'"  stretching  west wardly  towards  the  north,  the  term 
for  which  is  north-west.     That  "  versus  Septentrionem^^  is  to  be  gram- 
matically construed   in  connection  with  "  tenden"  is  evident,  since  the 
course  is  not  said  to  be  east  or  west  of  north ;  whilst  if  it  were  to  be 
construed  in  connection  with"af)  equinoetiali  Linea,"  it  would  only 
■erve  to  explain  what  could  never  be  doubted,  viz.,  that  Nova  Scotia 
was  situated  north  and  not  south  of  the  Equator. 

From  St.  Mary's  Bay,  the  course  is,  in  like  manner,  directed  to  run 
«'  versus  Septentrionem"  or  north-west,  across  the  entrance  of  the  Bay 
of  Fundy  to  the  River  St.  Croix.  And  this  is  the  true  course  as  ex- 
hibited by  the  map. 

But  the  next  part  of  the  course  is  not  directed  to  be  versus  Septentri- 
onem. but  simply  directs  the  St.  Croix  to  be  followed,  tracing  its  course 
uj.'  the  first  stream  which  flows  into  it  from  its  western  bank,  and  up  to 
«  i;.s  most  remote  source  or  spring."  And  by  referring  to  the  map,  it 
will  be  seen,  that  nothing  but  a  loeal  knowledge,  surprisingly  exact  for 
the  times,  could  have  suggested  a  description  so  consistent  with  the 
hydrography  of  the  country. 

Having  reached  the  most  remote  spring  where  the  Land  Portage  be- 
gins, we  find  the  old  course,  versus  Septentrionem,  or  north-west,  again 
enjoined,  and  directed  to  be  followed  by  a  straight  line  drawn  in  that 
direct,!  <n  to  the  nearest  naval  station,  river,  or  spring,  discharging  itself 
into  the  great  river  of  Canada.     Such  a  course  leads  directly  to  the  east 


Feaiherstonhaugh  and  Mudge. 


167 


to 
,it 
for 
the 

>e- 

lin 

hat 

self 

sast 


branches  of  the  Chandiere,  which  are  in  the  46th  parallel  of  north  lati- 
tude,  and  on  the  ancient  confines  of  Acadia.  This,  however,  was  a 
war  grant,  extending,  as  grants  of  that  character  sometimes  did,  to  the 
St.  Lawrence,  to  wit,  to  the  nearest  naval  station  in  the  Great  River  of 
Canada. 

Now  Quebec,  nearly  opposite  to  which  place  the  Chandiere  empties 
itself,  is  a  naval  station,  and  there  is  none  other  on  the  river,  or  even 
on  the  Gulf  of  St.  Lawrence,  for  a  distance  of  about  375  miles  east- 
ward, till  we  come  to  the  Bay  of  Gaspe,  which  is  spoken  of  in  the  grant 
as  the  next  naval  station.  The  evident  intention  therefore  of  the  grant 
was,  not  to  limit  it  by  a  due  north  line  from  the  sources  of  the  St.  Croix, 
but  a  north-west  line  running  from  the  westernmost  waters  of  the  St» 
Croix  to  a  point  in  the  St.  Lawrence,  opposite  to  Quebec.  It  cannot 
be  denied  that  this  interpretation  of  the  language  of  the  grant  is  consis- 
tent with  a  singularly  exact  knowledge,  for  the  time,  of  the  relative  situa-' 
tions  of  the  mouth  of  the  St.  Croix  River,  and  of  the  head  waters  of  the 
Chandiere  ;  and  that  any  other  interpretation  is  inconsistent  with  any 
knowledge  whatever  of  the  interior  of  the  country. 

We  consider  also  that  this  construction  of  the  grant  of  Nova  Scotia 
derives  great  weight  from  its  being  supported  by  ancient  maps  still  ex- 
tant.    It  would  be  deemed  reasonable  if  it  stood  only  upon  its  own 
merits  ;  but  confirmed  as  it  is  by  Coronelli's  map,  dated  16S9,  of  which 
the  extract  on  map  6,  No.  3,  has  been  already  alluded  to  in  a  i  ote  at 
p.  12,  we  h^v;    ;  tuceiveu  ourselves  in  duty  bound  to  submit  these  ob- 
servations with  the  collateral  evidence  to  your  Lordship.     At  the  period 
wher  this  map  was  published,  the  nature  of  the  boundary  of  the  Grant 
of  1621  must  have  been  well  understood,  and  if  the  western  boundary 
of  that  Graot  had  then  been  considered  to  je  a  north  line,  from  the  head 
of  the  St.  Croix,  crossing  the  St.  John  and  reaching  to  the  St.  Lawrence, 
it  would  have  been  so  laid  down  on  some  of  the  maps,  which  we  do  not 
find  it  to  be.     On  the  contrary,  the  maps  of  that  period,  as  we  see  by 
the  instance  quoted  from  Coronelli,  carry  a  boundary  line  from  the  head 
of  the  St.  Croiv,  in  a  north-westerly  and  westerly  direction,  to  the  head 
waters  of  the  Chandiere,  always  ^outh  of  the  River  St.  John,  and  its 
progress  westward,  separating  the  head  water  of  the  Penobscot  and  Ken- 
nebec from  the  head  waters  of  the  Chandiere.     The  original  map  from 
which   we  have  copied  the  extract  No.  -i,  has  an  engraved  dotted  line 
running  trora  the  St.  Croix  to  the  Chandiere,  the  south  side  of  which  is 
edged  with  a  red  colour  for  the  British  Colonies,  and  the  north  side  with 
a  blue  colour  tor  the  French  tolouit-s.     At  what  period  the  mistake  oc- 
curred which  led  to  the  erroue  )U3  construction  found  in  so  many  maps, 
the  effect  of  which  is  to  carrv  a  due  north  line  from  the  sources  of  the 


1€8 


Extracts  from  Report  of  Messrs. 


ft  '' 


li 


St.  Croix  to  the  St.  Lawrence,  we  know  not ;  but  it  appears  to  have 
been  subsequent  to  the  year  1689. 

This  most  erroneous  protraction  of  Mitchel's  map  ied  us  to  examine 
and  thoroughly  to  investigate  the  discussions  connected  with  the  origi- 
nal grant  of  Nova  Scotia  in  1621,  and  we  so  discovered,  that  all  the 
reasonings  advaucedi  n  the  discussions  upon  the  boundary  described  in 
the  grant,  were  founded  upon  a  translation  of  that  grant  furnished  by 
the  American  documents,  and  that  this  translation  had  omitted  to  give 
the  proper  sense  of  that  particular  portion  of  it  which  governs  the  true 
constraction  of  the  boundary  it  describes,  viz  :  "  Jld  proximam  naviiim 
staiioih'.m"  a  point  of  the  utmost  significance  ;  for  it  may  be  that  one 
reason  for  using  the  term  ^'proximam"  was  to  distinguish  Quebec  from 
Gaspe,  which,  as  it  respected  the  former,  was  to  be  considered  as  tilti- 
mam.  And  if  this  word  "proxti/iam"  was  significantly  inserted  in  the 
original  Latin,  it  seems  to  have  been  as  significantly  overlooked  in  the 
American  translation.     That  translation  is  as  follows  : — 

«  All  and  singular  the  lands  upon  the  Continent,  and  the  islands, 
situate  lying  and  being  in  America,  within  the  head  or  promontory  com- 
inonly  called  Cape  Sable,  in  the  latitude  of  forty  three  degrees  nearly  or 
thereabouts,  from  that  promontory  along  the  shore  stretching  to  the  west 
to  the  Bay  commonly  called  St.  Mary's  Bay,  thence  to  the  north  by  a 
direct  line  crossing  the  entrance  or  mouth  of  the  great  Bay,  which  ex- 
tends eastward  between'the  countries  of  the  Siriquois  and  Etchemins,  so 
commonly  called,  to  the  river  ct  ^monly  called  by  the  name  of  the  Holy 
Cross,  or  the  St.  Croix,  and  to  th  .  nrtherest  source  or  spring  upon  the 
western  branch  of  the  same,  which  first  mingles  its  waters  with  those 
of  the  said  river,  thence  by  an  imaginary  direct  line,  to  be  drawn  or  run 
through  the  country,  or  over  the  land  to  the  north  to  thejirsl  bay,  river, 
or  spring,  emptying  itself  into  the  great  river  of  Canada,  and  from  thence 
running  to  the  east,  along  the  shores  of  the  said  river  of  Canada,  to  the 
river,  bay,  or  harbour  commonly  called  and  known  by  the  name  of 
Gachepe  or  Gaspee." 

It  is  to  be  observed  of  this  translation,  that  all  its  inaccuracies  are 
in  perfect  harmony  as  respects  the  results  they  produce,  which  are 
to  turn  away  the  attention  of  those  who  confide  in  it,  from  a  literal  in- 
terpretation of  some  very  significant  passages  in  the  original  Latin 
document ;  and  the  practical  effect  is  to  obscure  the  description  of  the 
boundary,  in  such  a  manner  as  greatly  to  prejudice  the  British  claim. 
In  the  first  place  we  find  in  this  translation,  "  rersus  iSejj<en<itoncn»," 
whf'h,  as  has  been  shown,  is  strictly  equivalent  to  north-west,  rendered 
every  time  it  occurs,  by  the  words  "to  the  north  ;"  so  that  by  those 
words  the  readers  of  the  translation  must  necessarily  suppose  a  due  north 
line  to  have  been  intended.     Now,  if  the  legitimate  sense  of  "versus 


Feather stonhaugh  and  Mudge, 


169 


[are 
are 
in- 
Uin 
the 


Ini. 


» 


ered 
^ose 
wtk 
rsus 


Septentrionem,"  be  n  due  north  lino,  where  the  boundary  is  directed  to 
leave  the  westernmost  waters  of  the  St.  Croix,  why  is  not  the  same  mean- 
ing to  be  applied  to  the  words  •'  versus  Septenlrionem,"  in  the  passage  of 
the  grant  where  the  line  is  directed  to  cross  the  entrance  of  the  Bay  of 
Fundy,  and  where  the  course  must  of  necessity  be  norlh-wesl  ?  But  if  the 
words  "  versHS  Septeulrionem'"  in  that  passage  were  to  be  construed  "  due 
norlli,^'  and  the  line  were  to  be  so  drawu^  that  line  would  never  reach  the 
St.  Croix  River,  but  would  pass  forty  miles  to  the  east  of  it.  The  words 
"  versus  Septentrionem,"  therefore,  must  be  rendered  in  both  those  cases 
in  a  consistent  manner,  and  not  in  such  away  as  is  totally  opposed  to  the 
known  bearing  of  the  St.  Croix  River  from  St.  Mary's  Buy.  The  ex- 
pression "  to  the  north,"  in  the  American  translation,  is  therefore  clearly 
an  incorrect  interpretation  of  the  original  words  "versus  Septentrionem 
per  directam  lineam,"  or  towards  the  north  by  a  straight  line ;  meaning 
that  course  which  we  have  shown  was  north-west. 

Next  we  have,  "  ad  proximam  navium  statiouem,  fluvium  vel  scatu- 
riginem  in  magno  fluvio  de  Canada  sese  exonerantem,"  rendered  ■'  to 
the  first  bay,  river,  or  spring,  emptying  itself  into  the  Great  River  of 
Canada,"  as  though  any  bay  in  the  ordinary  meaning  of  the  word,  viz. 
a  place  where  boats  could  receive  shelter,  would  fulfil  the  intention  of 
the  grant,  and  be  a  true  rendering  of  the  words  "proximam  navium 
stationem."  If  it  be  assumed  that  the  intention  of  the  grant  was  not  to  give 
a  line  of  boundary  taUing  its  direction  from  the  westernmost  waters  of  the 
St.  Croix,  to  a  known  roadsted  or  naval  station,  but  merely  to  draw  a  due 
north  line  to  the  St.  Lawrence,  may  it  not  reasonably  be  asked,  whj 
was  not  the  line  directed  to  run  ad  Septentrionem  in  magno  Jhivio  de 
Canada  ?  If  such  was  the  intention,  the  mentioning  of  a  hay  or  a  river 
was  superfluous.  It  could  not  have  been  held  inportant  for  defining  the 
limits  of  the  grant,  that  there  should  be  either  one  or  the  other  at  the 
point  where  the  boundary  reached  the  St.  Lawrence,  if  the  boundary 
were  to  be  a  due  north  line  continued  till  it  struck  the  St.  Lawrence. 
Neither  was  it  known  at  that  time  that  either  bay  or  river  existed  in  the 
part  of  the  St.  Lawrence  to  which  the  American  translation  would  draw 
his  line.  The  small  unnavigable  streams  taking  their  rise  from  twenty 
to  thirty  miles  outh  of  the  St.  Lawrence  and  north  of  the  St.  John, 
were  unknown  at  thiit  period,  and  would  not  have  been  dignified  with 
the  name  of  rivers,  had  they  been  known,  seeing  that  in  our  times,  they 
serve  only  to  fioat  Iiidiau  canoes,  and  the  pine  logs  which  are  sent  dowa 
tbe  streams  to  be  manufactured  into  deals  by  the  saw-mills  constructed 
near  their  mouths.  But  if  the  intention  had  been  to  establish  a  line 
betwixt  the  wc.-ternmost  waters  of  the  St.  Croix  and  the  roadsted  or 
naval  station  of  Quebec,  the  words  " ad  ^Mii.i7Hia)ii  navium  stationem, 
Jluvium  eel  scaturiginem  in  magno  flu  no  de  Canada  sese  exoneranttm,'^ 

IB 


:■.  i 


:i ' 


70 


Extracts  from  Report  of  Messrs. 


would  be  full  of  significancy,  since  the  Chandiere  River  and  the  roadsted 
or  naval  station  of  Quebec,  are  both  there,  to  correspond  accurately  with 
the  words  of  the  grant. 

We  believe  it  will  not  be  denied  that  the  specific  meaning  of  the  word 
••  statio,"  when  referring  to  naval  matters,  is  "  a  roadsted  where  ships 
may  Wde."  Upon  this  occasion,  the  words  "  navium  stationem,"  clearly 
prove  this  to  have  been  intended,  and  not  any  small  bay  or  indentation 
on  the  river  coast.  Now,  as  there  is  not  any  roadsted  to  be  reached 
by  a  due  north  line,  and  there  is  not  even  a  safe  anchorage  in  that  part 
of  the  River  St.  Lawrence  which  such  o  line  would  strike,  we  are 
compelled  therefore  to  choose  between  Quebec  and  Gaspe,  each  of  which 
is  «  a  Statio"  in  the  sense  of  the  grant ;  but  Gaspe  being  twice  as  distant 
from  the  westernmost  source  of  the  St.  Croix,  as  Quebec,  this  last  must 
of  course  be  considered  the  "  pro:vimam  stationem." 

The  same  remark  with  respect  to  comparative  distance,  may  be  applied 
to  the  Chandiere,  whose  sources  are  nearer  by  one  half,  to  the  westernmost 
waters  of  the  St.  Croix  than  are  any  other  sources  of  the  small  streams 
emptying  themselves  into  the  St.  Lawrence,  which  could  be  reached  by 
o  due  north  line. 

The  American  translation  of  the  grant  of  Nova  Scotia,  which  we  have 
quoted,  is  an  official  one.  It  is  printed  in  document  126  of  the  House 
of  Representatives,  forming  No.  1.,  of  the  appendix  to  the  message  of 
the  President  of  the  United  States,  dated  Washington,  January,  1838, 
on  the  subject  of  the  "  Maine  Boundary,  Mr.  Greely,"  &c. 


Mitchell's  Map. 


On  Mitchell's  map,  the  Bay  of  Chaleurs  is  laid  down  one  degree  and 
f  )rty  minutes  too  far  to  the  east  in  respect  of  longitude,  and  about  forty 
minutes  too  far  to  the  north  in  respect  of  latitude.  This  remarkable 
error  perhaps  deceived  the  American  negotiators  at  the  Peace  of 
1783  ;  and  the  claim  they  now  makc'to  derive  support  to  their  "  high- 
lands" from  the  circumstance  of  the  western  termination  of  the  Bay  of  Cha- 
leurs appearing,  upon  Mitchell's  map,  to  be  only  about  thirity-five  miles 
from  the  River  St.  Lawrence,  is  much  favoured  by  this  error.  The  true 
distance  is  nearer  seventy-five  miles.  On  the  same  map,  the  western, 
most  sources  of  the  River  St.  Jokin  are  laid  down  about  thirty  miles 
from  the  Si.  Lawrence,  whilst  tne  true  distance  is  about  sixty-two  miles. 
A  line  drawn  upon  Machf'!I"=i  Map  from  the  western  termination  of  the 
Bay  of  Chaleurs  to  vhe  westernmost  branch  of  the  St.  Johns,  would  pass 
to  the  north  of  that  river;  and  a  lin"  drawn  upon  that  map  from  the 
easternmost  branch  of  the  Chandiere  to  the  western  termination  of 
the  Bay  of  Chaleurs,  would,  if  agreed  upon  as  a  boundary,  throw  the 


Featherslonhaugh  and  JMudge. 


171 


River  St.  John  into  the  United  States  ;  but  a  line  drawn  from  the  true 
geographical  position  of  the  western  termination  of  the  Bay  of  Chaleurs, 
to  the  westernmost  sources  of  the  River  St.  John,  if  agreed  upon  as  the 
boundary,  would  throw  that  river  far  to  the  north  '^.f  the  boundary  line, 
and  therefore  on  the  British  side  of  it. 

XV.  With  reference  lo  the  great  errors  of  Mitchell's  map  in  lati- 
tude and  longitude,  we  have  suggested  some  remarkable  considerations 
resulting  therefrom.  We  have  observed  that  if  a  line  were  protracted 
upon  that  map  between  the  most  western  sources  of  the  St.  John  and 
the  western  termination  of  the  Bay  of  Chaleurs,  and  were  adopted  as  the 
Boundary  between  the  two  countries,  the  River  St.  John  would  fall  to 
the  south  of  that  line,  and  be  within  the  United  States.  Whereas  by  a 
line  protracted  between  the  above  mentioned  points,  properly  adjusted 
as  to  the  latitude  and  longitude  as  they  exist  on  our  map,  the  River  St. 
John  would  be  left  on  the  British  side,  and  to  the  north  of  the  Bounda- 
ry between  the  two  countries.  But  though  we  have  referred  to  Mitchell's 
map  for  the  purpose  of  showing  how  the  mistakes  in  that  map  may  have 
contributed  to  account  for  the  erroneous  opinions  prevailing  in  the  United 
Slates  about  the  Boundary  Question,  we  are  quite  aware  that  Mitchell's 
map  is  not,  and  cannot  be  any  authority  on  this  question  :  inasmuch 
as  it  is  not  mentioned  or  referred  to,  in  any  manner,  in  the  Treaty. 
TheBoundary  must  be  determined  by  applying  the  words  of  the  Treaty 
to  the  natural  features  of  the  country  itself,  and  not  by  applying  those 
words  to  any  map. 


' 


Decision  of  the  Commissioners  under  the  Treaty  of  1794. 


gh. 
ha- 
iles 
rue 
rn- 
iles 
les. 

the 
lass 

the 
of 

the 


We  have  thus  a  regular  recognition  of  Massachusetts  being  bounded 
upon  Nova  Scotia,  and  of  the  most  western  waters  of  the  St.  Croix  form- 
ing part  of  the  boundary  of  Nova  Scotia.     And  how  was  the  duty  of 
the  Commissioners  under  the  Treaty  of  1794  performed? 

Disregarding  the  obvious  propriety  of  choosing  the  most  western 
source  of  the  river,  they  fixed  upon  the  north  branch ;  and  this  in  the 
fece  of  the  most  extraordinary  evidence  against  their  proceeding. 
For  the  Scoodeag,  which  is  the  known  Indian  name  of  the  St.  Croix, 
runs  from  its  most  western  source  to  its  mouth,  under  the  same  name  of 
Scoodeag,  whilst  its  northern  branch,  which  comes  in  at  the  upper  falls, 
bears  the  separate  name  of  Cheptttnaticook.  The  westernmost  sources 
of  the  Scoodeag  are  in  a  low,  flat,  lake  country,  consisting  of  many  lakes 
running  into  cncb  other,  and  hence  the  Indian  name  given  to  that  part 
of  the  country  and  to  the  river ;  for  Scoodeag  means /ou',  swamp  meO' 
dow.  Now  the  very  continuity  of  its  name  should  have  convinced  the 
Commianiouers  of  the  impropriety  of  deviating  from  that  line.    But  the 


172 


Extracts ftom  Report  of  Messrs. 


I*  ;■: 


British  Commissioner  was  overruled.  He  had,  in  conjunction  with 
the  American  Commissioner,  chosen  an  American  gentleman,  upon 
whose  intelligence  and  integrity  he  relied,  for  the  third  Commissioner. 
This  gentleman  was,  in  point  of  fact,  an  umpire  to  decide  all  differences 
which  might  arise  ;  and  the  American  Commissioner  having  claimed 
a  stream  called  Magaguadavic,  lying  still  farther  to  the  east  than  the 
Cheputnaticook,  to  be  the  true  St.  Croix,  the  British  Commissioner 
consented  to  a  compromise,  the  result  of  which  was,  that  although  they 
made  a  correct  decision  as  to  the  identity  of  the  St.  Croix,  they  practi- 
cally decided  to  adopt  the  north  source,  as  if  it  had  been  the  most  west- 
era  source.  That  these  gentleman  went  out  of  the  line  of  their  duty,  as 
prescribed  in  the  Treaty  of  1794,  is  evident;  and  much  future  expense 
and  misunderstanding  would  have  been  saved,  if  their  report  had  been 
restricted  to  the  identification  of  the  river.  This  will  be  seen  by  look- 
ing to  the  map. 

The  St.  John,  like  all  other  large  rivers,  occupies  the  lowest  level  of 
the  country  through  which  it  flows,  and  holds  its  course  through  a  valley 
of  considerable  breadth,  which  below  Mars  Hill  extends,  in  a  modified 
manner,  some  distance  to  the  westward  of  the  bed  of  the  river.  The 
nearer  a  due  north  line  could  be  brought  to  the  St.  John,  the  better  the 
chance  was  that  it  would  run  up  that  valley,  whilst  the  further  it  lay  to  the 
west,  the  greater  was  the  certainty  of  its  missing  that  valley  and  of  its  more 
speedily  meeting  the  highlands  of  the  country.  And  this  has  in  prac- 
tice proved  to  be  the  case  ;  for  the  exploratory  north  line  drawn  from  the 
monument,  reached  no  highlands  until  it  came  to  Mars  Hill ;  whilst  if  the 
linehad  started  from  its  true  point,  the  westernmost  waters  of  the  Scoodeag, 
it  would  have  reached  the  "  highlands"  about  twenty-five  miles  south  of 
Mars  Hill,  near  to  the  point  where  they  separate  the  St.  Croix  (a  tri- 
butary of  the  Roostuc)  from  the  waters  of  the  Meduxnakeag,  which  flows 
into  the  St.  John.  These  highlands  are  distinctly  visible  from  the 
American  post  at  Hculton,  and  are  about  fifteen  miles,  magnetic  west, 
from  that  post.  This  deviation  of  the  Commissioners  from  their  duty, 
which  has  had  a  most  unfortunate  influence  upon  the  settlement  of  this 
great  question,  was  besides  hig'.ily  prejudicial  in  another  respect  to  the 
British  rights.  If  it  should  be  ultimately  assented  to,  it  will  lose  to 
Great  Britain  more  than  one  million  of  acres  of  land. 

In  1798,  an  explanatory  article  was  added  to  the  Treaty  of  Amity  of 
1794,  releasing  the  Commissioners  from  their  obligation  to  conform  to 
the  provisions  of  the  Vth  article  of  the  Treaty,  in  respect  to  particular- 
izing the  latitude  and  longitude  of  the  sotirce  of  the  River  St.  Croix ; 
and  declaring,  amongst  other  things,  that  the  decision  of  the  said  Com- 
Kiissioners  "  respecting  the  place"  ascertained  and  described  to  be  the 


i 


Feather atonhaugh  and  Mudge. 


178 


ity, 

this 

the 

to 

of 
ito 
lar- 
ix; 
km* 
Ithe 


Sfource  of  the  said  River  St.  Croix  shall  be  permanently  binding  «  upon 
His  Majesty  and  the  United  States." 

Upon  this,  we  beg  to  remark,  that  it  has  been  made  sufficiently 
manifest,  that  the  Treaty  of  1783  intended  that  the  point  of  departure  of 
tho  due  north  line  should  be  at  the  westernmost  source  of  the  St.  Croix, 
the  description  of  the  western  limits  of  Nova  Scotia  having  been  regu- 
larly maintained  unaltered  in  all  the  documents  from  the  grant  of  1621. 
The  proceedings  of  Congress,  also,  as  found  in  the  secret  journals, 
always  speak  of  "  the  boundary  settled  bettoeen  Massachusetts  and  JVova 
Scotia,"  and  of  the  line  being  to  be  settled  *'  agreeably  to  their  respective 
rights." 

To  all  these  considerations,  we  add  the  important  fact,  that  in  the  Yth 
article  of  the  Treaty  of  Ghent,  it  is  stipulated  that  the  ascertainment  of 
the  north-west  angle  of  Nova  Scotia,  is  to  b<3  made  "  in  conformity 
with  the  provisions  of  the  said  Treaty  of  Peace  of  one  thousand  seven 
hundred  and  eighty-three."  A  fact  which  further  confirms  the  general 
obligation  to  consider  the  most  western  waters  of  the  St.  Croix,  as  the 
true  boundary  of  Nova  Scotia. 

The  irresistible  conclusion  then  presents  itself,  that  it  is  indispensable 
to  the  faithful  execution  of  the  2d  article  of  the  Treaty  of  Peace  of  1783, 
that  the  commencement  of  the  due  north  line  be  drawn  from  the  north- 
westernmost  source  of  the  St.  Croix  ;  and  that  whatever  mistakes  may 
have  hitherto  crept  in,  during  the  attempt  to  settle  this  question,  the  two 
Powers,  in  order  to  execute  the  Treaty,  must  at  last  go  back  to  that  point. 
It  is  true  that  Her  Majesty's  Government  may  be  considered,  looking 
to  the  explanatory  Article,  as  pledged  to  abide  by  the  decision  of  tho 
Commissioners  under  the  Treaty  of  1794,  yet  this  pledge  was  given 
before  the  proceedings  of  those  Commissioners  were  known  to  bo  in 
violation  of  the  Treaty  of  1783,  and  when  the  nature  of  their  compromise 
was  not  understood.  'I'hat  compromise  was  onesided  in  every  respect. 
The  acknowledgement  that  the  river  decided  upon  was  the  true  St.  Croix, 
could  not  have  been  avoided.  The  ample  means  of  identifying  it  have 
long  been  public.  But  in  return  for  thatacknowledgement.  Great  Britain 
is  asked,  by  the  selection  of  a  wrong  point  for  the  source  of  that  river,  to 
lose  a  territory  of  more  than  one  million  of  acres  of  land,  and  has  been 
subjected  in  consequence  of  that  erroneous  decision,  to  much  expense  and 
trouble,  by  the  delay  in  the  execution  of  the  Treaty  of  1783. 

If  then,  the  United  States  had  ground  for  refusing  to  be  bound  by 
the  adjudication  of  the  King  of  the  Netherlands,  under  tho  Convention 
of  the  29lh  of  September,  1827,  which  by  article  VII  of  the  Conven- 
tion was  to  be  taken  as  "  final  and  conclusive,"  because  his  adjudication 
was  a  compromise,  and  not  a  decision  upon  points  submitted  to  him, 
and  was  not  conformable  to  the  conditions  required  by  the  Treaty   of 

15* 


174 


The  British  Jlgent 


1T83,  how  much  better  ground  has  Great  Britain  to  refuse  its  sanction  to 
the  proceedings  of  the  Commissioners  of  1794,  now  that  they  are  dis- 
covered to  be  in  violation  of  the  Treaty  of  1783,  at  the  same  time  that 
they  are  the  main  cause  of  the  difficulties  which  have  lain  in  the  way 
of  the  execution  of  that  treaty  ! 


No.  V 

Extracts  from  the  Arguments  of  the  British  Agent  under  the  Ghent 

Commission. 

The  British  Agent  before  the  Commission  of  1798,  from  whose  argu* 
ments  extracts  have  been  given  at  large  in  the  No.  I  of  this  Appendix, 
is  the  same  gentleman  who  twenty  years  later  saw  cause  to  change  his 
opinions,  and  who,  as  his  Britannic  Majesty's  Agent  under  the  Ghent 
Commission,  did  suggest  in  1818,  and  sustained  with  great  zeal,  the  new 
pretension  on  the  part  of  Great  Britain  to  place  'he  north-west  angle  of 
Nova  Scotia  south  of  the  River  St.  John.  He  was  quoted  as  very  com- 
petent authority  of  what  was  the  prevailing  understanding  in  New 
Brunswick,  in  the  year  1798,  and  to  show  that,  at  that  time,  with  the 
treaty  and  printed  maps  before  him,  and  with  a  general  knowledge  of 
the  country,  he  construed  that  instrument  as  every  other  person  then 
did,  according  to  its  obvious  and  natural  sense. 

The  following  extracts,  from  his  arguments  before  the  Ghent  Com- 
mission ill  1820,  1821,  r/ill  indicate  the  reasons  by  which  he  sustained 
that  singular  change  of  opinion. 

"  At  Mars  Hill  there  will  be  found  a  point  of  intersection  of  the  north 
line  with  highlands  fully  answering  the  description  in  the  treaty  :  there, 
it  is  conceived,  is  the  point  at  which  the  north  line  ought  to  terminate; 
for  these  lands  are  not  only  unquestionably  the  highest,  but  they  are  also 
the  first  that  have  been  intersected  by  the  north  line  ;  and  it  would  not 
only  be  unreasonable  to  pass  over  these  to  look  for  others,  which,  if  found, 
would  not  so  well  answer  the  description,  but  would  also  be  inconsistent 
with  the  meaning  of  the  words  used  in  the  treaty,  viz  :  "  North  to  the 
highlands;"  which  words  are  evidently  to  be  understood  as  intending 
that  the  north  line  should  terminate  whenever  it  reached  the  highlands 
which,  in  any  part  of  their  extent,  divide  the  waters  mentioned  in  the 
treaty." 

It  is  presumed  that  it  will  admit  of  no  doubt  that  the  true  intention 
of  that  part  of  the  treaty,  now  under  consideration,  was  to  secure  to  the 


under  the  Ghent  Commission. 


175 


te; 
ilso 
not 
ind, 
■tent 
the 
ing 
nds 
the 

lion 
the 


United  States  the  objects  solely  which  are  above  specified  in  thia  regard  ; 
and  that  it  was  likowiae  the  intention  of  this  part  of  the  treaty,  to  leave 
to  his  majesty  the  undisputed  and  undisturbed  right  and  possession  of 
and  to  alt  parts  of  the  adjoining  territory  not  intended  to  be  included 
within  the  boundaries  of  the  United  States.  This  intention  will  be 
literally  effectuated  by  a  very  small  variation  of  th(!  expression  actually 
made  use  of  in  this  regard,  namely,  by  describing  the  second  line  form, 
ing  this  an^le  in  the  following  words,  that  is  to  say,  "  along  tlie  said  high- 
lands where  tl^cy  divide  those  rivers  that  empty  themselves  into  the  River 
St.  Lawrence  from  those  that  fall  into  the  Atlantic  Ocean."  The  ex- 
pression actually  mude  use  of  is,  along  the  said  highlands  which  divide 
the  rivers,  &c.  For  it  is  to  be  observed,  that  the  north-west  angle  of 
Nova  Scotia  is  distinctly  defined  before  any  mention  is  made  of  the 
circumstance  of  the  highlands,  which  form  a  subsequent  part  of  the 
boundary  dividing  the  rivers  mentioned,  in  that  regard,  in  the  treaty. 
And  this  circumstance,  of  the  highlands  dividing  rivers,  is  mentioned, 
not  as  constituting  a  part  of  the  definition  of  the  term,  but  merely  as 
matter  of  description,  with  the  view  of  securing  to  the  United  States  the 
sources  of  the  rivers  which  empty  themselves  within  the  boundaries,  as 
before  stated.  The  words  descriptive  of  the  eastern  boundary  of  the 
United  States,  are  these  :  "  East,  by  a  line  to  be  drawn  along  the  middle 
of  the  River  St.  Croix,  from  its  mouth  in  the  Bay  of  Fundy,  to  its  source  ; 
and  from  its  source,  directly  north,  to  the  aforesaid  highlands  which  di- 
vide the  rivers  that  fall  into  the  Atlantic  Ocean  from  those  which  fall 
into  the  River  St.  Jiawrence."  These  wor.  taken  in  their  literal  and 
individual  significatK^  ',  would  involve  a  c<  -^truction  altogether  incon- 
sistent with  other  pan-  of  the  treaty,  and  \  n  facts  at  t^>e  time  within 
the  knowledge  of  the  t  mers  of  it,  and  if  ih.;  foregoing  observations 
upon  the  first  descriptiv  of  this  par?  of  the  boundar'  be,  as  they  are 
presumed  to  be  correct,  these  words,  descriptive  of  the  eastern  boundary, 
must,  of  necessity,  be  interpreted  in  a  corresponding  sense." 

"  The  Highlands  thus  intersected  by  the  due  north  line,  lie  in  lUe 
general  course  and  direction  of  a  line  drawn  t'\  ,>m  the  north-westernmost 
head  of  Connecticut  River,  along  the  well  known  and  very  elevated 
and  conspicuous  height  of  land  forming  the  ackuow'  dgc  mid  no:  .rious 
landmark  and  boundary  between  the  two  nations,  in  that  quarter  which 
divides  the  Rivers  Chandiere  and  d'l  Loup,  emptying  themselves  into  the 
River  St.  Lawrence,  from  the  'ivci  ^  Penobscot  and  Kennebec,  falling 
into  the  Atlantic  Ocean.  Thi'i  v  t-II  known  height  of  land  being  the 
only  highland  which  actually  diviJ>-  f  lie  rivers  contemplated  in  the  treaty 
to  be  divided  by  the  boundary  line  therein  described,  as  the  undersigned 
agent  has  heretofore,  in  the  course  of  these  discussions,  abundantly 
shown  ;  and  this  well  known  height  of  land  being  moreover  found  to 


'   \  ■; 


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IMAGE  EVALUATION 
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Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

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176 


The  Bntish  Agent 


extend  north-easterly  in  e  direction  towards  Mars  Hill,  in  adisanciand 
unbroken  ridge,  for  many  miles,  and  to  be  afterwards  connected  with 
Mars  Hill  by  a  successioD  of  mountains  and  broken  ridges  of  High- 
lands, intersected  with  ponds  8;id  streams,  appearing  to  the  eye,  when 
viewed  from  various  stations.,  to  be  an  elevated  and  unbroken  ridge, 
as  the  result  of  the  surveys  fully  prove.  No  other  point  in  this  due 
north  line,  in  any  part  of  its  extent,  combines  these  various  circumstan- 
ces,  exclusively  of  the  other  and  fatal  objections  to  adopting  any  point 
in  this  line,  north  of  the  River  St.  John,  as  the  north-west  angle  of 
Nova  Scotia.  It  seems,  therefore,  from  these  considerations,  to  result 
in  demonstration,  that  the  point  where  the  said  due  north  line  strikes 
the  Highlands  at  Mars  Hill  is  the  north-west  angle  of  Nova  Scotia  truly 
intended  in  the  treaty  of  peace  of  1783. 

<'  The  true  intention  of  the  treaty,  then,  under  all  the  acknowledged 
facts  in  this  case,  would  clearly  be  ascertained  by  the  following  obvious- 
ly plain  and  natural  and  nearly  literal  construction  of  its  phraseology, 
namely :  It  is  hereby  agreed  and  declared  that  the  following  are  and 
shall  be,  the  boundaries  of  the  United  States,  viz  :  from  the  north-west 
angle  of  Nova  Scotia,  viz  :  that  angle  which  is  formed  by  a  line  drawn 
due  north  from  the  source  of  the  St.  Croix  River  to  the  line  of  the  high- 
lands, along  the  said  line  and  the  highlands  which  divide,"  &c. 

"The  force  of  this  reasoning  will  be  rendered  more  apparent  if  the 
boundaries  of  the  United  Stales,  described  in  the  treaty,  be  traced  from 
west  to  east,  instead  of  from  east  to  west,  as  they  are  traced  in  the  treaty, 
merely  for  the  purpose  of  a  more  convenient  description  of  them ;  for, 
it  will  not  be  contended  that  the  quarter  in  which  one  may  commence 
the  actual  tracing  of  a  boundary,  previously  agreed  upon,  can  make  any 
difference  in  the  boundary  itself.  Let  then  the  tracing  of  the  bounda- 
ry, in  this  quarter,  be  made  <'  from  the  north-westernmost  head  of  Con- 
necticut River  along  the  Highlands  which  divide  those  rivers  that  empty 
themselves  into  the  River  St.  Lawrence  from  those  which  fall  into  the 
Atlantic  Ocean,  to  the  north-west  angle  of  Nova  Scotia,  viz:  that  angle 
which  is  formed  by  a  line  drawn  due  north  from  the  source  of  St.  Croix 
River  to  the  Highlands." 

«In  this  case  the  only  difference  is,  that  the  second  line  forming  the 
angle  is  placed  first  in  order  in  the  description — there  is  no  diflerenco 
in  the  line  itself.  But  it  is  the  course  or  inclination  of  this  line  which 
is  from  the  north-west  angle  of  Nova  Scotia,  at  the  point  of  its  intersec- 
tion with  the  due  north  line,  drawn  from  the  source  of  the  St.  Croix. 

«'  He,  therefore,  determined  carefully  to  abstain  from  any  reference 
whatever  to  any  documents,  maps,  or  plans,  respecting  the  ancient  or 
former  boundaries  of  the  Province  of  Nova  Scotia,  or  to  any  of  the  pro- 
ceedings before  the  commissioners  under  the  5lh  article  of  the  treaty  of 


Under  the  Ghent  Commission. 


1T7 


tor. 


on- 
ipty 
the 
igle 
roix 


1794,  or  of  those  under  the  4th  article  of  the  present  treaty,  although  he 
had  them  all  in  his  possession,  because  he  evidently  perceived  that  the 
merits  of  the  business  submitted  to  the  consideration  of  this  honorable 
Board,  though  they  might  have  been  incidentally  alluded  to,  had  never 
come  directly  unr^'sr  discussion  on  either  of  those  former  occasions; 
and,  consequently,  that  any  of  the  obiter  dicta  of  the  commissioners  or 
agents  of  either  government,  in  matters  not  in  judgment  before  them, 
nor  submitted  in  any  manner  to  their  investigation,  could  not  any  more 
than  the  obiter  dicta  of  judges  or  council  in  any  judicial  proceeding,  alio 
intuitoVi  in  the  courts  of  law,  be  cited  as  authorities  in  a  case  in  which 
the  merits  of  those  occasional  illustrations  should  become  the  direct  ob. 
ject  for  investigation  or  decision  ;  and  it  would  obviously  be  most  un. 
reasonable  if  it  were  otherwise." 

"And  we  here  discover  the  accuracy  and  propriety  of  the  peculiar 
phraseology,  in  the  first  description  of  the  north-west  angle  of  Nova 
Scotia,  namely,  that  this  angle  is  not  in  this  description,  designated  tb 
be  that  angle  which  ;s  formed  by  a  line  drawn  due  north  from  the  source 
of  the  River  St.  Croix,  to  the  Highlands  which  divide  those  rivers  which 
empty  themselves  into  the  River  St.  Lawrence  from  those  which  fall 
into  the  Atlantic  Ocean,  but  merely  to  the  Highlands.  The  framers  of 
the  treaty  well  knew,  that  this  north  line  would  never  intersect  any  part 
of  those  only  Highlands  contemplated  in  the  treaty ;  therefore  the  second 
line  is  described  to  be  along  the  said  Highlands,  &c.,  and  is  strictly 
conformable  to  Mitchell's  Map,  in  this  regard.  And  as  it  has  been  ac> 
cordingly  iucontestably  established,  that  the  line  along  the  highlands 
intended  by  the  treaty,  should  and  must  be  aliue  south  of  the  River  St. 
John,  it  results  in  demonstration,  that  the  north-wect  angle  of  Nova 
Scotia,  designated  in  th^j  2d  article  of  the  treaty  of  peace,  of  1783,  is 
formed  by  a  protraction  of  this  line  from  the  said  highlands  easterly, 
along  the  highlands,  following  the  sources  of  the  several  branches  of  the 
rivers,  above  mentioned,  falling  into  the  Atlantic  Ocean,  and  leaving 
the  same  within  the  territories  of  the  United  States,  until  such  line,  so 
protracted. shall  intersect  a  line  drawn  due  north  from  the  source  of  the 
River  St.  Croix ;  which  point  of  intersection  must,  therefore,  incontro. 
vertibly  be  the  north-west  angle  of  Nova  Scotia,  required  to  be  ascer- 
tained by  this  honorable  Board,  and  the  6tb  article  of  the  treaty  of 
Ghent." 


sec- 


of 


NOTE  EXPLANATORY  OF  MAPS. 


Mitchell's  Map.  The  due  north  line  is  delineated  on  the  original 
map,  and  extends  to  the  River  St.  Lawrence.  The  residue  of  the  color- 
ed line  has  been  added  on  this  transcript  in  order  to  show  the  limits  of 
the  disputed  territory  according  to  it,  and  that  the  negotiators  of  the 
treaty,  bad  they  so  intended  it,  might  with  facility  have  described  with 
precision  the  boundary  claimed  by  Great  Britain. 

Campbell's  sketch  of  Highlands.  He  has  added  Mr.  Odell's  views 
from  Houlton,  which  are  delineated  in  his  survey  of  the  Restock,  a 
distinct  map  not  inserted  here,  which  is  also  filed  with  the  proceedings  of 
the  Ghent  commission. 

Province  of  Quebec,  Northern  Colonies  from  Military  Atlas,  and 
Bowen's  Map. 

About  thirty  maps  published  in  London  subsequent  to  the  Proclama- 
tion of  1763  were  laid  on  the  part  of  the  United  States  before  the  King 
of  the  Netherlands,  eighteen  of  which  published  before  the  treaty  of 
1783,  show,  like  that  of  Mitchell,  that  the  situation  of  the  basin  of 
the  St.  John,  of  the  sources  of  the  Penobscot,  and  of  those  of  the  tribu. 
tary  streams  of  the  River  St.  Lawrence  were  known  to  the  negotiators 
of  the  treaty.  And  all  those,  on  which  the  southern  boundaries  of  Lower 
Canada  were  laid  down,  either  in  conformity  with  the  Proclamation  of 
1763,  or  with  the  treaty  of  1783,  place  that  boundary  as  well  as  the  north- 
west angle  of  Nova  Scotia  on  the  highlands  claimed  by  the  United 
States.  Those  published  before  the  treaty  differ  as  to  the  western  boun- 
dary of  Nova  Scotia,  which  was  determined  only  by  the  commissions 
of  the  governovs  of  that  province  ;  and  these  had  not  been  made  public. 

The  three  maps  given  here  were  amongst  those  produced  by  the 
United  States,  and  are  a  fair  specimen  of  all :  they  have  not  been  se- 
lected, but  are  those  to  which  access  could  be  had  at  this  moment. 
Bowen,  favoring  the  claim  of  the  Crown  against  Massachusetts'  Bay, 
has  made  the  Penobscot  the  boundary  between  Nova  Scotia  and  Mas- 
sachusetts. In  the  map  of  the  Province  of  Quebec  the  line  from  the 
source  of  the  St.  Croix  to  the  highlands  is  not  a  straight  line.    In  the 


JVbie  Encplanatory  of  Maps. 


170 


sions 
kblic. 
the 
sc- 
lent. 
Jay, 
[as- 
the 
the 


map  from  the  Military  Atlas  (as  well  as  in  that  of  Powna'.l)  that  line  ia 
drawn  from  a  small  stream  (called  Cobscook)  that  falls  in  the  western 
extremity  of  the  Bay  of  Passamaquoddy.  The  reason  for  this  is  that,  in 
the  year  1765,  the  Governor  of  Nova  Scotia,  under  pretence  that  this 
was  the  St.  Croix,  granted  100,U00  acres  of  land  to  Governor  Ber- 
nard, Fuwnall  and  others,  west  of  the  Scoodiac  and  extending  to  th&t 
pretended  St.  Croix  ;  and  Pownall  placed  the  boundary  on  his  map  ac- 
cordingly. Of  the  three  maps,  two  place  the  boundary  between  Nova 
Scotia  and  Canada,  east  of  the  north-west  angle  of  Nova  Scotia,  south 
of,  or  on  the  Ristigouche  ;  and  one  places  it  north  of  that  river.  Simi- 
lar irregularities  are  found  on  other  maps.  But  they  all  agree,  as  above 
stated,  in  the  general  features  of  the  country,  and  in  placing  the  south- 
ern boundary  of  Canada  and  the  north-west  angle  of  Nova  Scotia  on 
the  highlands  claimed  by  the  United  States. 

The  map  of  Messrs.  Featherstonhaugh  and  Mudge  exhibits  that  *'  axis 
of  maximum  elevation  of  the  whole  country"  which,  in  the  report  (page  40) 
they  present  "as  the  true  highlands  intended  by  the  2d  article  of  the  treaty 
of  1783,  uniting  to  the  character  of  highlandi  as  contradistinguished 
from  lowlands,  the  condition  required  by  the  treaty,  of  dividing  the  riv- 
ers that  empty  themselves  into  the  River  St.  Lawrence  from  those  which 
flow  into  the  Atlantic  Ocean,  to  the  north'Westetnmosthead  of  the  Con- 
necticut River."  How  far  those  true  highlands  fulfil  the  cocdition  of 
dividing  the  rivers  thus  designated,  the  map  shows.  But,  as  to  the 
axis  aforesaid,  it  appears  that  a  group  of  mountains,  some  peaks  of 
which  have  an  elevation  exceeding  2000  feet,  is  found  v/here  the  Tobique, 
which  falls  into  the  St.  John,  and  some  branches  of  the  Ristigouche 
and  of  the  Nipisiquit,  both  of  which  fall  into  the  Bay  of  Chaleurs,  have 
their  sources  ;  and  that,  in  a  south-westwardly  direction  and  about  160 
miles  distant,  another  group  of  about  the  same  elevation  is  found  near 
the  most  southerly  sources  of  the  St.  John  and  the  opposite  sources  of 
the  Penobscot.  Those  two  groups  are,  in  that  direction,  the  two  ex- 
tremities of  the  basin  of  the  St.  John.  The  ground  in  both  places  falls 
rather  abruptly  near  1000  feet,  and  thence  descends  on  both  sides  gradu- 
ally, as  it  necessarily  must,  to  the  bed  of  the  St.  John  about  120  feet 
above  tide  water.  To  an  ignorant  man,  the  whole  line  appears  to  be 
an  inverted  arch  or  irregular  curve,  of  which  the  St.  John  is  the  lowest 
and  the  two  groups  of  mountains,  or  extremities,  the  highest  points  : 
and  the  axis  of  that  curve,  or  imaginary  straight  line,  drawn  from  one 
of  the  extremities  to  the  other,  is  in  the  clouds. 


ERRATA. 


Page  Line 

33,  37,  for  their 

67,  1,  "is 

76,  25,  "    accompany  this 

109,  6,  "    to 

132,  25,  «    were 

137,  2,  «    definitely, 

139,  36,  «    Grant, 

146,  34,  «    is  simply, 

148,  19,  «    proceeding, 

150,  15,  'f    they, 

165,  37,  «    fort, 


read  this. 
"  it  is. 
'*     were  annexed  to  the  first 

American. 
"      for. 
"      was. 
"      definitively. 
"      Grant,  or. 
«'      is. 

"      proceedings. 
"     the  Commissioners. 
«     port. 


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